Open Government Guide

Author

Foreword

The Indiana General Assembly has given the public and the news media broad access to meetings of public agencies and to records of the public’s business through the Indiana Open Door Law and the Indiana Access to Public Records Act. Recent amendments have attempted to provide quicker resolution of access questions through the creation of a state public access counselor and have strengthened the right to recover attorney fees when access requests are denied. In addition, the law now deals with the increasing computerization of public records and the shift to privatization of traditional governmental services. Indiana’s access laws resulted from pressure from the news media and the public for greater access to the public’s business at various levels of government. Both acts also find their conceptual genesis in the wide-ranging demand for openness in government after Watergate. In the current world of terrorism threats and identity theft, however, the scope of openness may be narrowing to make room for the expanding areas of homeland security and informational privacy. Those who draft and interpret legislation currently face the challenge of striking a balance between the dueling values of disclosure and privacy, openness and security.

The Open Door Law was enacted in 1977 and repealed a portion of the Hughes Anti-Secrecy Act as it related to open meetings. Although there is no official legislative history in Indiana, the intent of the legislators in enacting The Open Door Law is contained in the preamble. The General Assembly declared:

[T]his state and its political subdivisions exist only to aid in the conduct of the business of the people of this state. It is the intent of this chapter that the official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that the people may be fully informed. The purposes of this chapter are remedial, and its provisions are to be liberally construed with the view of carrying out its policy.

The Open Door Law assumes that a meeting of an agency considering the public’s business must be open to the public, unless there is a specific statute permitting closure. Indeed, the Indiana Court of Appeals has noted that Indiana’s Open Door Law “is the broadest and most sweeping we have found.” Riggin v. Board of Trustees of Ball State Univ., 489 N.E.2d 616, 623 (Ind. App. 1986).

Six years after enacting the Open Door Law, the General Assembly followed with a sweeping overhaul of what remained of the Hughes Anti-Secrecy Act. The Hughes Anti-Secrecy Act, which applied to state and local administrative agencies, defined public records as “any writing in any form necessary, under or required, or directed to be made by any statute or by any rule or regulation.” Ind. Code § 5-14-1-2(1) (repealed). The Indiana Court of Appeals noted in a 1980 case that the Anti-Secrecy Act’s definition of public records was more conservative than that of the common law. The common law definition considered a record to be a public record if it was created in “the discharge of a duty imposed by law.” Gallagher v. Marion County Victim Advocate Program, Inc., 401 N.E.2d 1362, 1366 (Ind. App. 1980). The Anti-Secrecy Act’s definition had prompted endless debates over whether a particular record was “required to be kept.” The 1983 statute was the product of a legislative study committee which examined the need for revision to the open records law and considered similar laws in other states. The committee’s final report noted that the new law is intended “to cover nearly every document that is generated by every public agency.”

As with the Open Door Law, the General Assembly expressed its intent with respect to public records in the language of the statute. The lawmakers found that

[a] fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information. This chapter shall be liberally construed to implement this policy and place the burden of proof for the non-disclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.

Ind. Code § 5-14-3-1.

Though the law’s initial broad scope and intent for openness remain intact, recent amendments have narrowed public access in some respects. For example, in 2003, the definition of “public record” was amended to include material that “is created, received, retained, maintained, or filed by or with a public agency.” Ind. Code § 5-14-3-2. The prior definition also included the word “used” in the string of actions performed by an agency that would qualify material as a “public record.” See Ind. P.L. 261-2003. In practice, however, this small change to the definition of public record does not seem to have curtailed the public’s broad right to access public agency materials.

But other recent changes may produce a more substantial impact. These changes have expanded the types of records exempted from public access, largely in response to the nation’s growing concerns about terrorism and informational privacy. The first of these changes were homeland security provisions, adopted in 2003. Mirroring similar changes made to the federal Freedom of Information Act (FOIA) in the wake of the terrorist attacks of Sept. 11, 2001, these amendments permit agencies to deny access to any record or part of a record “which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to a terrorist attack.” Ind. Code § 5-14-3-4(b)(19). Procedures an agency must follow to deny an information request under the new anti-terrorism exemption were added at the same time. See Ind. Code § 5-14-3-9(d).

In addition to responding to growing terrorism concerns, the General Assembly also has been receptive to concerns about informational privacy. Recent amendments to the Access to Public Records Act have exempted from disclosure the personal information (telephone number, address and Social Security number) of customers of municipally owned utilities. Ind. Code § 5-14-3-4(b)(20). Originally enacted as a mandatory exemption, this category was amended shortly thereafter to its current status as a discretionary exemption.

Another significant change is reflected in Indiana Administrative Rule 9, which governs access to court records. In 2004, the Indiana Supreme Court substantially amended this rule, which went into effect Jan. 1, 2005. The rule’s stated objective is to recognize both the societal benefits of public access and the core values of individual privacy. See Commentary to Ind. Admin. R. 9(A) (available at http://www.in.gov/judiciary). The rule calls for balancing these competing interests, providing that if courts prohibit access to certain information, they must “use the least restrictive means and duration” when doing so. Ind. Admin. R. 9(G)(4)(d). However, the rule’s many exemptions to disclosure have the potential to swallow the rule’s proclaimed policy of “presumptive access” and run afoul of constitutional and common law rights of access to judicial records. See Ind. Admin. R. 9(G) (enumerating exemptions to public access under the rule). Though many of these exemptions pertain to specific types of records, the revamped rule also contains “catch-all provisions,” which exempt from disclosure any information “excluded from public access by specific Court order,” or sealed records under the Access to Public Records Act. Ind. Admin. R. 9(G)(1)(c), (b). Pursuant to Indiana Code Section 5-14-3-4(a)(8), the exemptions in Rule 9, promulgated by the Indiana Supreme Court, must be excluded from public access.

Effective July 1, 2005, subject to specific statutory exceptions, “a state agency may not disclose an individual’s Social Security number.” Ind. Code § 4-1-10-3. This statute authorizes the attorney general to investigate alleged violations, id. § 4-1-10-11, and imposes criminal penalties for such violations, id. § 4-1-10-8. Though not a part of the Indiana Access to Public Records Act, it is found in the part of the Indiana Code addressing fair information practices for agency collection and use of personal information. The Social Security number law may affect substantial types of records that agencies can disclose. However, because the Access to Public Records Act provides that access must be granted if confidential information can be redacted, id. § 5-14-3-6, the impact of Social Security number confidentiality on public records as a whole may be minimized. Although the law’s impact on public access remains to be seen, its passage reflects a growing awareness among legislators of the ways in which personal information can be abused, and the corresponding need to ensure that such information is protected.

This tension between privacy on the one hand and openness of government on the other is a balancing act that is played out in the federal Freedom of Information Act (FOIA), as well. One commentator has noted the similarities between Indiana’s Access to Public Records Act and the federal FOIA. See Eric J. Graninger, Note, Indiana Opens Public Records: But (b)(6) May Be the Exception That Swallows the Rule, 17 Ind. L. Rev. 555 (1984). Both statutes generally authorize access to a wide variety of documents created, received or maintained by public agencies, and then provide specific exceptions to that general rule of access. The exemptions in the Access to Public Records Act and the Freedom of Information Act are not identical, but they do overlap. Recent amendments to each act, such as the anti-terrorism provisions, show a continuation of this trend. As a result, when interpreting the Indiana statute, Indiana courts may find guidance in federal case law on the Freedom of Information Act. Id. at 558 n.10; see, e.g., Pigman v. Evansville Press, 537 N.E.2d 547, 550 (Ind. Ct. App. 1989); Indiana Civil Liberties Union v. Indiana Gen. Assembly, 512 N.E.2d 432, 433–44 (Ind. Ct. App. 1987).

It should be noted that Indiana’s Constitution supports providing open access to the court system in particular. The Indiana Constitution mandates that “[a]ll courts shall be open,” Ind. Const. Art. I § 12, reflecting “the ancient maxim of jurisprudence that every one is entitled to his day in court, and no one shall be condemned unheard.” State ex rel. Bd. Of Commr’s of Montgomery Cnty. v. Jamison, 42 N.E. 350, 351 (Ind. 1895). The Open Courts clause was intended to prohibit the demanding of fees or costs that influence legal proceedings. Square D. Co. v. O’Neal, 72 N.E.2d 654, 657 (Ind. 1947). Further, the provision “guarantees access to the courts to redress injuries to the extent the substantive law recognizes an actionable wrong.” Smith v. Indiana Dep’t of Correction, 883 N.E.2d 802, 807 (Ind. 2008).

The Open Courts clause thus limits the General Assembly. The legislature may not impose unreasonable regulations that limit the access to courts. Id. Such regulations must “be a rational means to achieve a legitimate legislative goal.” VanDam Estate v. Mid-America Sound, 25 N.E.3d 165, 170 (Ind. Ct. App. 2015). The Open Courts clause also requires the courts to “entertain” existing causes of action. Id.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

“Any person may inspect and copy the public records of any public agency during the regular business hours of the agency,” with exceptions as to which records may or might not be disclosed. Ind. Code § 5-14-3-3(a), § 5-14-3-4; see City of Elkhart v. Agenda: Open Gov’t Inc., 683 N.E.2d 622, 627 (Ind. App. 1997) (city had no discretion to deny or condition access to office phone records). Governmental entities are “persons” under the statute, see Knox County Council v. Sievers, 895 N.E.2d 1263 (Ind. Ct. App. 2008), as are corporations, limited liability companies, partnerships, and unincorporated associations. Ind. Code § 5-14-1.5-2.

3. Use of records

Commercial use of public records obtained on disk or tape under the 1995 “enhanced access amendments” may be restricted by state agency rule or local ordinance adopted under Indiana Code Section 5-14-3-3(e). Use of such records for news purposes, nonprofit activities, or academic research is not prohibited. Ind. Code § 5-14-3-3(e).

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

Because of the expansive definition of “public agency” and “public records,” Indiana Code Section 5-14-3-2, the records of the executive branch are subject to the Act unless they are covered by a specific statutory exemption.

The Act does not differentiate between records of the office-holder and other public records. If the record is one that is “created, received, retained, maintained, or filed by or with a public agency,” Ind. Code § 5-14-3-2, it should be subject to access. Although this definition of public records remains quite broad, it used to be even wider in its scope. Before 2003, the definition included any record that had been “created, received, maintained, used, or filed by or with a public agency.” Ind. Code § 5-14-3-2 (2001) (emphasis added). Indiana Public Law 261-2003, Sec. 5 deleted “used” from the definition.

The Act does not limit itself to certain executive branch functions. However, attorney-client privilege and the common interest privilege (an extension of the attorney-client privilege) recently has limited public access to executive documents. See Groth v. Pence, 67 N.E.3d 1104 (Ind. Ct. App. 2017). Former Indiana Governor, Mike Pence, met his burden to show that “white paper,” which was attached to an email that the Texas Governor-Elect sent to Pence, was not subject to disclosure under the Access to Public Records Act. Id. at 1122. Citing Indiana Code Section 5-14-3-4(b)(6), the court held that Pence properly employed the “deliberative material exception” to APRA requests; the white paper was an expression of legal opinion. Id. The court concluded that Pence’s denial was not arbitrary and capricious. Id.

2. Legislative bodies

Unless covered by a specific exemption, all records of legislative bodies are subject to the Act. Ind. Code § 5-14-3-2; see also Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236, 241 (Ind. 2016) (holding that the Access to Public Records Act applies to the General Assembly). However, the Indiana Supreme Court has held that separation of powers considerations prevent the courts from enforcing the access statutes against the Indiana General Assembly. State ex rel. Masariu v. Marion Superior Court No.1, 621 N.E.2d 1097, 1097 (Ind. 1993). On the other side of the coin, the Indiana Court of Appeals held that APRA did not require a small claims court to produce a documents describing the court’s administration, reasoning that doing so would amount to legislative intermeddling with the judiciary. Woolley v. Washington Twp. of Marion Cnty. Small Claims Ct., 804 N.E.2d 761, 766 (Ind. Ct. App. 2004).

Further, the Indiana Supreme Court has limited its interpretative authority under Indiana Code Section 5-14-3-4(b), which excepts “work product of individual members and partisan staff of the general assembly” from the Access to Public Records Act. Koch, 51 N.E.3d at 242. The Court held that the issue of whether the documents the plaintiffs sought were “legislative work product” was a non-justicable question. Id.

3. Courts

Unless covered by a specific exemption (or by a properly issued protective order in litigation), all records of courts are covered by the Access to Public Records Act. Ind. Code § 5-14-3-2. The Act, however, provides for mandatory exemption from disclosure for any information that is “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8).

In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The stated objective of the rule is to “provide maximum public accessibility to court records, taking into account public policy interests that are not always fully compatible with unrestricted access.” See Commentary to Ind. Admin. R. 9(A). Though many of the rule’s provisions simply reiterate exemptions provided by the Access to Public Records Act, see, e.g., Ind. Admin. R. 9(G)(2), the rule also exempts from disclosure many additional types of information. See Ind. Admin. R. 9(G) (providing a exclusive list of exemptions from disclosure, including, among others, records relating to adoption; Acquired Immune Deficiency Syndrome; child abuse; drug tests; grand jury proceedings; paternity records; medical, mental health or tax records; account numbers or personal identification numbers (PINs); and expungement orders entered in criminal or juvenile proceedings). This exclusion can occur without a hearing and without a balancing of the competing interests involved. See Bobrow v. Bobrow, 810 N.E.2d 726, 734 (Ind. App. 2004) (“When public records fall within a mandatory exception under [Ind. Code § 5-14-3-]4(a), a trial court can seal those records without holding . . . a hearing and balancing the competing interests.”).

Administrative Rule 9 in many respects is contrary to constitutional and common law rights of access to judicial records, adopting statutory exceptions without regard to whether such records were traditionally public when the First Amendment was adopted. For example, juvenile proceedings were not closed to the public at the time the Bill of Rights and the Indiana constitution were adopted. At common law, juvenile proceedings were not conducted in secret but were part of the public record, as Justice Sullivan explained in his article tracing the roots of Indiana’s juvenile court system. See Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 Ind. L. Rev. 279, 279 (1997). Yet Indiana Code Section 31-32-6-3 and Indiana Administrative Rule 9 limit the public information available regarding juvenile proceedings. Under Indiana Code Section 31-32-6-3, ”a delinquency proceeding is open to the public whenever a petition alleging that the child has committed an act that would be murder or a felony if committed by an adult is filed under IC 31-37-10,” with exceptions. Further, under Indiana Administrative Rule 9(G)(2)(g)(i), certain identifying information of people in juvenile proceedings are excluded from the general rule of disclosure.

In addition to specifying certain types of documents that are exempt from disclosure, Rule 9 also includes a “catch-all provision,” which allows for exemption of any information “excluded from public access by specific court order.” Ind. Admin. R. 9(G)(1)(c). Litigants seeking to exclude material from public access under this provision must follow Indiana Code Section 5-14-3-5.5 and Indiana Administrative Rule 9(G)(4)(c)(iii), which requires a public hearing before sealing records. See Travelers Casualty & Surety Co. v. U.S. Filter Corp., 895 N.E.2d 114, 115 (Ind. 2008) (vacating court order sealing materials); Allianz Ins. Co. v Guidant Corp., 884 N.E.2d 405, 409 (Ind. Ct. App. 2008) (holding that order sealing documents was improper even though the parties agreed to the confidentiality of the information). Thus, although state courts are subject to Indiana’s Access to Public Records Act, Indiana Code Section 5-14-3-4(a)(8) excepts documents the judiciary deems confidential, which the judiciary has delineated in Rule 9. These rule changes went into effect Jan. 1, 2005.

In addition to Rule 9, Indiana case law and certain statutes provide further guidelines for access to court records. See, e.g., Ind. Code § 31-39-1-2 (except under certain circumstances, juvenile court records are confidential); see Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 Ind. L. Rev. 279, 279 (1997); Woolley v. Washington Twp. Small Claims Court, 804 N.E.2d 761, 765, (Ind. App. 2004) (holding that the Washington Township Small Claims Court was a “public agency” under the Access to Public Records Act, but because an affidavit signed by a judge was not a “public record,” the court was not required to follow the Access to Public Records Act regarding the timeliness of its response and a reason for denying a citizen’s request

4. Nongovernmental bodies

The definition of “public agency” includes certain nongovernmental bodies. For example, under Indiana Code Section 5-14-3-2(q), “a private university police department” is a “public agency” for the purposes of the Access to Public Records Act. However, the private university police department must exercise the power of the state to be a “public agency.” See ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1198–99 (Ind. 2016) (holding that Notre Dame’s police department was not a “public agency” because the university’s trustees created and control the department).

The definition of “public agency” also includes any entity or office that is subject to budget review by the State Board of Tax Commissioners or the governing body of a county, city, town, township or school corporation, or subject to an audit by the State Board of Accounts. Ind. Code § 5-14-3-2(q). Under this definition, non-governmental bodies supported or maintained by public funds (as distinguished from receiving payment for measureable goods or services) are subject to the Act. Ind. Code § 5-14-3-2.

The State Board of Accounts is empowered to “examine all accounts and all financial affairs of every public . . . entity.” Ind. Code § 5-11-1-9(a). A “public entity” is any provider of goods, services, or other benefits that is: “(1) maintained in whole or in part at public expense; or (2) supported in whole or part by appropriations or public funds or by taxation.” Ind. Code § 5-11-1-16(e); Indianapolis Convention & Visitors Ass’n Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 213–14 (Ind. 1991) (not-for-profit corporation that received a percentage of county hotel/motel tax revenues to promote Indianapolis tourism is a public agency subject to the Access to Public Records Act).

In 2007, the statute was amended to clarify that providers of goods and services are not public agencies if they meet the following criteria: (1) the provider receives public funds through an agreement with the public entity, in exchange for services, goods, or other benefits; (2) the amount of fees received “does not involve a consideration of the tax revenues or receipts” of the governmental entity; (3) the public entity negotiates the fee; (4) the public entity is billed for services or goods actually provided; and (5) the provider is not required to be audited by the state board of accounts. Ind. Code § 5-14-3-2.1.

5. Multi-state or regional bodies

If the body meets the statute’s definition of public agency, by exercising the executive, administrative, judicial, or legislative power of the state or its political subdivisions, or is subject to budget review or governmental audit for the receipt of public funds, it would be subject to the Act. Ind. Code § 5-14-3-2.

6. Advisory boards and commissions, quasi-governmental entities

The definition of public agency includes “any advisory commission, committee, or body created by statute, ordinance, or executive order to advise the governing body of a public agency, except medical staffs or the committees of any such staff.” Ind. Code § 5-14-3-2(q)(5). Additionally, the following are “public agenc[ies]” under the Access to Public Records Act: school corporations; certain law enforcement agencies; license branches; and the state lottery, gaming, and horse racing commission. Id. Ind. Code § 5-14-3-2(q).

7. Others

“Public agenc[ies]” under the Access to Public Records Act is broad, including both governmental and nongovernmental entities. See Ind. Code § 5-14-3-2(q).

Courts may resolve whether or not an entity is a “public agency” when there is a question about the matter. See Perry Cnty. Dev. Corp. v. Kempf, 712 N.E.2d 1020, 1027 (Ind. App. 1999) (whether development corporation working closely with the county was a “public agency” under the Act was an issue appropriate for resolution by the trial court). The party seeking records has the burden of proving that an entity is a “public agency.” See Indianapolis Convention & Visitors Ass’n, Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 212 (Ind. 1991).

Whether an entity is a “public agency” under the Access to Public Records Act has influenced Indiana courts’ analysis of what is a “government entity” under other acts. See Lane ex rel. Sharp v. Frankfort Cmty. Sch. Bldg. Trades Corp., 747 N.E.2d 1172, 1178 (Ind. App. 2001) (Building Trades Corporation’s exemption from Access to Public Records Act and Open Door Law on account of not being a “public agency” under those statutes was a relevant factor in the court’s determination that the Corporation also was not a “government entity” entitled to protections afforded to such entities by the Indiana Tort Claims Act and the Comparative Fault Act).

C. What records are and are not subject to the act?

1. What kinds of records are covered?

A public record is “any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained, or filed by or with a public agency . . . .” Ind. Code § 5-14-3-2(r). This broad definition used to be even broader, having extended to all material “created, received, retained, maintained, used, or filed by or with a public agency.” Ind. Code § 5-14-3-2 (2001) (emphasis added). In 2003, however, Indiana Public Law 261-2003 § 5, dropped the word “used.” The law does, however, exempt confidential records from disclosure requirements, Ind. Code Section 5-14-3-4(a), and also gives public agencies the discretion to deny access to enumerated categories of records, Ind. Code Section 5-14-3-4(b).

3. Are certain records available for inspection but not copying?

In general, all public records are available for inspection and copying (not just one or the other). Ind. Code § 5-14-3-3(a). However, if a public agency does not have reasonable access to a machine capable of reproducing the record, or if the person cannot reproduce the record by “enhanced access” under Ind. Code Sections 5-14-3-3.5, then the person seeking access may only inspect and manually transcribe the record. Ind. Code § 5-14-3-8(e)(2).

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

Indiana Administrative Rule 9(D), the “General Access Rule,” applies to all court records, “regardless of the manner of creation, method of collection, form of storage, or the form in which the record is maintained.”

When certain records are available in electronic form—including judgments, orders, and decrees—Courts “should FOI” to make them remotely accessible. Id. 9(E). A public agency that maintains public records in an electronic data storage system must make “reasonable efforts” to provide the requestor “a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.” Ind. Code § 5-14-3-3(d).

Further, the definition of “public record” includes information generated on “magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.” Ind. Code § 5-14-3-2(r). The statute was amended in 1993 and 1995 to provide “enhanced access” to electronically stored information if the public agency provides access in that manner. Ind. Code § 5-14-3-3.5. “Enhanced access” is the inspection of a public record (a) by means of an electronic device other than one provided in the office of the public agency, or (b) which requires compiling or creating a list that doesn’t result in permanent electronic storage of that information. Ind. Code § 5-14-3-2(f). A state agency or public agency “may or may not” provide enhanced access solely at its discretion. Ind. Code § 5-14-3-3(c)(1); see also Ind. Code § 5-14-3-3.6(b) (“As an additional means of inspecting and copying public records, a public agency may provide enhanced access to public records maintained by the public agency.”); § 5-14-3-3.5(a)-(b) (authorizing the same for a state agency, as defined in Ind. Code § 4-13-1-1).

a. Can the requester choose a format for receiving records?

If the public agency agrees to provide enhanced access, the requester could theoretically choose a format, because the definition of “direct cost” includes the cost of developing a program for retrieving the electronic records. Ind. Code § 5-14-3-2(d). A person seeking enhanced access directly from a public agency (instead of an intermediate provider) must enter into a contract with that agency. Ind. Code § 5-14-3-3.5(c)(1). Presumably, the format could be one of the contract terms.

However, since 2003, public agencies submitting reports to the General Assembly must do so electronically. Paper submission of such reports is prohibited, and no state funds may be used to duplicate, print, distribute or mail a report to the General Assembly. Ind. Code §§ 5-14-6-3; 5-14-6-4.

A public agency that maintains public records in an electronic data storage system must make “reasonable efforts” to provide the requestor “a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.” Ind. Code § 5-14-3-3(d).

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

No. In fact, the statutory mandate to separate disclosable from non-disclosable records applies with equal force to electronic records. Ind. Code § 5-14-3-6(b); see also Ind. Admin. R. 9(D)(2) and commentary (rules for public access to court records apply to all court records, no matter how the information was created, collected, or submitted to the court, and the rule applies independent of the technology or format of the information to promote the general open access policy).

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

“Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency” may be exempted from disclosure at the agency’s discretion. Ind. Code § 5-14-3-4(b)(11).

“A public agency that maintains or contracts for the maintenance of public records in an electronic data storage system shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.” Ind. Code § 5-14-3-3(d). No reported case law interprets this provision of the Act or addresses metadata.

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The statute authorizes the Indiana Department of Administration to establish a uniform copying fee for state agencies. Ind. Code § 5-14-3-8(c). The fee may not exceed the average cost of copying records by state agencies or 10 cents per page, whichever is greater. Id. A public agency that is not a state agency must establish a fee schedule for certification, copying or fax machine transmission of documents. The fee may not exceed the greater of 10 cents per page for black and white copies or 25 cents per page for color copies and the actual cost of copying. Ind. Code § 5-14-3-8(d). Additionally, the cost must be uniform throughout the agency and to all purchasers.). Id. “Actual costs” means the cost of the paper and the per-page cost to use copying or facsimile equipment and does not include labor or overhead costs. Id.

2. Particular fee specifications or provisions

The statute generally prohibits public agencies from charging any fee to inspect, search for, examine or review a record to determine whether the record may be disclosed, except where the statute so provides. Ind. Code § 5-14-3-8(b)(1)-(2). For example, public agencies can collect search fees if a court so orders, id. § 5-14-3-8(f), and may charge “any reasonable fee[s] for permitting a governmental agency to inspect public records by means of an electronic device,” id. § 5-14-3-8(i).

For providing a duplicate of a computer tape, computer disk, microfilm or similar record system containing information, a public agency may charge a fee that does not exceed the sum of the agency’s direct cost of supplying the information in that form and the standard cost for selling the same information in the form of a publication. Ind. Code § 5-14-3-8(g). In the case of the Legislative Services Agency, the non-partisan support arm of the Indiana General Assembly, the fee may be a reasonable percentage of the agency’s direct cost of maintaining the system in which the information is stored. However, that fee cannot exceed the sum of the agency’s direct cost of supplying the information in that form and the standard cost for selling the same information in the form of a publication. Id.

“Direct cost” means 105 percent of the cost of initial program development, labor required for retrieval, and the medium for electronic output. Ind. Code § 5-14-3-2(d). A 1993 amendment authorized “enhanced access” to public records through electronic devices other than those provided by the public agency. Ind. Code § 5-14-3-3.5. This cleared the way for outside vendors to provide electronic access to public records for a fee. See id. § 5-14-3-3.5(c). Enhanced access may be provided only if the requester or a third party has entered into a contract with the agency. Agencies must provide enhanced access “only through the computer gateway administered by the office of technology.”Id. § 5-14-3-3(e). The agency may charge “any reasonable fee agreed on in the contract.” Ind. Code § 5-14-3-8(h).

3. Provisions for fee waivers

As of 2017, there are no mandatory fee waivers under the Act. However, public agencies are authorized to waive fees at their discretion in many instances. For example, public agencies may waive the fees for providing electronic maps to users for a noncommercial purpose, including journalism, academic research, nonprofit activities and public agency program support. Ind. Code § 5-14-3-8(k). A public agency also may waive the fee for permitting a governmental entity to inspect public records by means of an electronic device. Ind. Code § 5-14-3-8(i). While the statute requires public agencies to set copying fees, there is nothing that expressly requires the agencies to charge the fees. Ind. Code § 5-14-3-8(c).

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

Aggrieved parties under the Act seek remedy by filing a lawsuit in any court of competent jurisdiction in the state. The attorney general has no role in the enforcement of public access. See Ind. Code § 5-14-5-6.

2. Availability of an ombudsman

The office of the Indiana Public Access Counselor was created in 1999. Ind. Code § 5-14-4-6. The Public Access Counselor is appointed by the governor for a four-year term, and is responsible for conducting research, preparing educational materials, responding to informal inquiries made by the public and public agencies concerning the public access laws, and issuing advisory opinions to interpret the public access laws upon the request of person or a public agency. Ind. Code § 5-14-4-10. The Public Access Counselor’s advisory opinions are available online at http://www.in.gov/pac/2330.htm, and its informal opinions are available online at http://www.in.gov/pac/2329.htm.

Public agencies must cooperate with the Public Access Counselor in any investigation or proceeding. Ind. Code § 5-14-5-5. However, seeking the opinion of the Public Access Counselor is separate from the enforcement process that occurs in the courts. Consulting the Public Access Counselor is not required, Ind. Code § 5-14-5-4, but is advisable because failing to do so precludes a prevailing plaintiff from collecting attorney fees if litigation becomes necessary, with a limited exception. Ind. Code § 5-14-3-9(i).

3. Commission or agency enforcement

The Act neither requires nor provides for enforcement procedures by a commission or agency. A person denied access should seek the intervention of the state Public Access Counselor, not only to facilitate access but also to lay the foundation for entitlement to attorney fees if litigation is required. Ind. Code § 5-14-3-9(i).

F. Are there sanctions for noncompliance?

In addition to authorizing a lawsuit to compel the public agency to release a record, Ind. Code Section 5-14-3-9(e), the statute also provides for disciplinary consequences to employees who violate the Act. Except as provided by Ind. Code § 4-15-10 (the state employees’ Bill of Rights), an employee or officer of a public agency who knowingly or intentionally discloses information classified as confidential by state statute commits a Class A misdemeanor. Ind. Code § 5-14-3-10(a). Furthermore, if a public employee intentionally, knowingly or recklessly discloses or fails to protect information classified as confidential by state statute, that employee may be disciplined in accordance with the personnel policies of the agency that employs him. Ind. Code § 5-14-3-10(b). If, however, a public employee “unintentionally or unknowingly” discloses confidential or erroneous information in response to a request under the Access to Public Records Act, or if the public employee discloses confidential information in reliance on an advisory opinion by the public access counselor, then that employee is “immune from liability” for such a disclosure. Ind. Code § 5-14-3-10(c).

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

Beyond the Access to Public Records Act, agencies have their own unique disclosure rules in which they must publish certain information, even if they did not receive a request for said information. See, e.g., Ind. Code § 8-15.5-4-1.5(f) (stating that the Indiana Finance Authority must publish on its website the Authority’s replies to public comments submitted); Ind. Code § 8-1-8.5-10(h) (stating that the Indiana Utility Regulatory Commission must make an electricity supplier’s petition for energy plans available on the Commission’s website).

3. Records retention requirements

Indiana Code Section 5-14-3-4(h) states that public records subject to Indiana Code Article 5-15 (“State and Local Administration: Preservation of Public Records”) may be destroyed only according to the applicable record retention schedules under that article. Public records not subject to Indiana Code Section 5-15 may be destroyed in the ordinary course of business. Id.

Indiana Code Section 5-15-5.1-10(b)(1) requires each agency to submit a retention schedule. See also Ind. Code § 5-15-5.1-1(s) (defining “retention schedule” as “a set of instructions prescribing how long, where, and in what form a records series must be kept”). Additionally, the State Commission on Public Records and the Local Public Records Commissions must make general retention schedules for records not falling under a specific schedule. Ind. Code §§ 5-15-5.1-5(11); 5-15-6-2.5. Links to various retention schedules can be found here: https://www.in.gov/iara/3266.htm.

Additionally, a public record classified as confidential shall be made available for inspection and copying seventy-five years after it is created, unless the records concerns an adoption or patient medical records. Ind. Code § 5-14-3-4(d).

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

The Act has both mandatory and discretionary exemptions. There are mandatory exemptions for confidential records and discretionary exemptions for a laundry list of records. Ind. Code §§ 5-14-3-4(a); (b). The most recent addition to the discretionary exemptions is “records relating to negotiations between a state educational institution and another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or educational mission of the state educational institution, if the records are created while the negotiations are in progress.” Ind. Code § 5-14-3-4(b)(28).

Amendments to Sections 5-14-3-4(a) and (b) have added exemptions for autopsy records, personal information of municipal utility customers, and, perhaps most notably, exceptions for records “which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.” Ind. Code § 5-14-3-4(a)(11) and (b)(19), (20).

In general, the exemptions are patterned after the Freedom of Information Act (FOIA), see, e.g., Pigman v. Evansville Press, 537 N.E.2d 547, 550 (Ind. Ct. App. 1989), but over time, the list has been expanded to meet the concerns of various interest groups. The 2003 addition of Ind. Code Section 5-14-3-4(b)(19), creating a detailed discretionary exemption for information relating to terrorist attacks, mirrors a similar curtailing of FOIA in response to the post-Sept. 11 homeland security initiative.

2. Discussion of each exemption

Fourteen categories of records specified by the Act are not subject to disclosure unless access is required by state or federal statute or access is ordered by a court under the rules of discovery. Ind. Code §§ 5-14-3-4(a)(1)–(12):

(ii) Those declared confidential by administrative rule under specific statutory authority to classify public records as confidential.

(iii) Those required to be kept confidential by federal law.

(iv) Records containing trade secrets. Trade secrets are defined as: “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure and use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ind. Code § 24-2-3-2; see also id. § 5-14-3-2(t). Whether information constitutes “trade secrets” is an issue subject to judicial interpretation. See Indiana Bell Tel. Co. v. Indiana Util. Regulatory Comm’n, 810 N.E.2d 1179, 1187 (Ind. App. 2004) (telephone service providers’ responses to an Indiana agency’s survey were public records, not protected by trade secret exemption, where not all providers requested response confidentiality and where most of the information was very general); ESPN Prods., Inc. v. Indiana Dep’t of State Revenue, 28 N.E.3d 378, 381–82 (Ind. Tax Ct. 2015) (holding that a Production Services Agreement was exempt from disclosure under the trade secrets exemption).

(v) Confidential financial information obtained, upon request, from a person. This does not include information that is filed with or received by a public agency pursuant to state statute.

(vi) Information concerning research, including actual research documents, conducted under the auspices of a state college or university. See Robinson v. Indiana Univ., 659 N.E.2d 153 (Ind. Ct. App. 1995) (holding that titles of research projects in university meeting minutes fell under this exception as “information concerning research”).

(vii) Grade transcripts and license examination scores obtained as part of a licensure process. This provision is limited to test results to the extent that the individual student can be identified. Att’y Gen. Op. 85-10 (1985).

(viii) Records declared confidential by or under rules adopted by the Supreme Court of Indiana. See Ind. Admin. R. 9(G).

(ix) Patient medical records and charts created by a provider, unless the patient gives written consent under Indiana Code Article 16-39 or as provided under Chapter 16-41-8.

(xi) A photograph, video recording or audio recording of an autopsy, except as provided in Indiana Code Section 36-2-14-10 (pertaining to coroners’ use of autopsy records). This exemption was added to the Indiana Code in 2002. See Ind. P.L. 1-2002, § 17.

(xii) A Social Security number contained in the records of a public agency.

(xiii) Contact information for a debtor and any document submitted to the court as part of the debtor’s loss mitigation package

Twenty-three categories of documents may be disclosed at the discretion of the public agency. Ind. Code §§ 5-14-3-4(b)(1)–(23):

(i) Investigatory records of law enforcement agencies. However, under Indiana Code Section 5-14-3-5, certain law enforcement information must be made available. This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents, and complaints. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files).

(ii) The work product of an attorney who, pursuant to state employment or appointment to a public agency, represents a public agency, the state, or an individual.

(iii) Test questions, scoring keys and other examination data used in administering a licensing, employment or academic examination before the examination is given or if it is to be given again.

(iv) Scores of tests if the person is identified by name and has not consented to the release of his scores.

(v) Records relating to negotiations involving certain enumerated agencies and commissions with industrial, research, or commercial prospects. Final offers must be released.

(vi) Intra-agency or inter-agency advisory or deliberative materials that are expressions of opinion or are of a speculative nature that are communicated for purposes of decision-making. See Brandenburg Indus. Serv. Co. v. Indiana Dep’t of State Revenue, 26 N.E.3d 147, 154 (holding that two pages of handwritten notes of the Department of State Revenue were not barred from disclosure under this exception because the exception applies to the general public rather than the litigants) (Ind. Tax Ct. 2015); Groth v. Pence, 67 N.E.3d 1104, 1118 (Ind. Ct. App. 2017) (holding that disclosure of white papers was discretionary as deliberative material).

(vii) Diaries, journals or other personal notes serving as the functional equivalent of a diary or a journal. See Journal Gazette v. Bd. Of Trs. of Purdue Univ., 698 N.E.2d 826, 829 (Ind. Ct. App. 1998) (holding that the compliance log fell within this exception).

(viii) Personnel files of public employees and files of applicants for public employment. However, the following information must be disclosed: the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment of present or former officers or employees of the agency, information relating to the status of any formal charge against the employee, and information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined. All personnel file information is available to the affected employee or his representative. See Att’y Gen. Op. 87-16 (1987) (employment contract of any public official or employee available for inspection or copying upon request); S. Bend Tribune v. S. Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938–39 (Ind. Ct. App. 2000) (holding that information regarding candidates for the Superintendent fell within this exception). This subsection does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.

(ix) Minutes or records of hospital medical staff meetings.

(x) Administrative or technical information that would jeopardize a record-keeping or security system. See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626–27 (Ind. Ct. App. 1997) (holding that telephone numbers in and of themselves are neither technical nor administrative information).

(xi) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it.

(xii) Records specifically prepared for discussion or developed during discussion in an executive session authorized by the Indiana Open Door Law, Indiana Code Section 5-14-1.5-6.1. However, this subsection does not apply to information required to be available under subsection (viii) above, pertaining to personnel files of public employees.

(xiii) The work product of the Legislative Services Agency under personnel rules approved by the Legislative Council.

(xiv) The work product of individual members and the partisan staffs of the General Assembly.

(xv) The identity of a donor of a gift made to a public agency if non-disclosure is required as a condition of the gift or if the donor or the donor’s family member requests nondisclosure after the gift is made.

(xvi) Library or archival records that can be used to identify library patrons or have been acquired by a library with specific conditions on disclosure.

(xvii) The identity of persons who contact the Bureau of Motor Vehicles about a driver’s ability to safely operate a motor vehicle, and related records of the Drivers License Advisory Committee.

(xviii) School safety and security measures, plans, and systems.

(xix) A record or part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack. This section was added in 2003. See Ind. P.L. 173-2003, § 5. The section includes a list of twelve types of records included under this description. See Ind. Code § 5-14-3-4(b)(19)(A)–(L).

(xx) The following information concerning a customer of a municipally owned utility (as defined in Ind. Code § 8-1-2-1): telephone number, address and Social Security number. This section was added in 2002 as a mandatory exception to the Act under § 5-14-3-4(a), but was changed to a discretionary exemption, listed under § 5-14-3-4(b), in 2003. See Ind. P.L. 1-2002, § 17 and Ind. P.L. 173-2003, § 5.

(xxi) The telephone number and address of a complainant in the records of a law enforcement agency, except if the address must be available if it is the location of the suspected crime or accident.

(xxii) The name, compensation, job title, and other information about a law enforcement officer working in an undercover capacity.

(xxiii) Records requested by an offender relating to a correctional or law enforcement officer, the victim of a crime, a judge, or a family member of any of the previous, that concern the security of a jail or correctional facility.

(xxiv) Information concerning an individual less than eighteen years of age who participates in a conference, meeting, program, or activity conducted or supervised by a state educational institution, including certain information about the individual’s parent or guardian.

(xxv) Criminal intelligence information.

(xxvi) Certain information in a report of or claim for unclaimed property under Indiana Code Sections 32-34-1-26 or 32-34-1-36.

(xxvii) Law enforcement records, except as provided under Indiana Code Section 5-14-3-4(b)(19) and under sections 5.1 and 5.2 of this chapter. But before disclosing the recording, the public agency must comply with the obscuring requirements of sections 5.1 and 5.2.

(xxviii) Records relating to negotiations between a state educational institution and another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or educational mission of the state educational institution, if the records are created while negotiations are in progress. However, The terms of the final offer of public financial resources communicated by the state educational institution to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated. This subdivision does not apply to records regarding research prohibited under IC 16-34.5-1-2 or any other law.

B. Other statutory exclusions

The Act prohibits commercial use of lists of employees of a public agency, persons attending conferences or meetings at a state institution of higher education or persons involved in programs or activities conducted or supervised by such an institution, and students enrolled in public schools, if the school corporation has adopted a policy restricting the use of such lists. Ind. Code § 5-14-3-3(f). State agencies by administrative rule and other governmental units by ordinance may restrict the commercial use of information obtained through “enhanced access.” Ind. Code § 5-14-3-3(e).

Additionally, if a document is declared confidential by state statute, this declaration overrides the general provisions of the Access to Public Records Act. See Ind. Code § 5-14-3-4(a). The Public Access Counselor has provided a “nonexclusive list” of statutes that restrict access to certain records. The most current version of the list is available on Page 68 of the Indiana Public Access Handbook, which is available to the public on the Public Access Counselor‘s Web site at https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf. The list, prepared jointly by the offices of the Public Access Counselor and the Attorney General, also contains a non-exclusive list of records that are statutorily required to be disclosed. A few examples of access restrictions from the list include: complaints and correspondence with Consumer Protection Division of the Attorney General’s Office are confidential with certain exceptions (Ind. Code § 4-6-9-4); criminal intelligence information is confidential (Ind. Code § 5-2-4-6); the Department of Revenue shall not divulge any information disclosed concerning inheritance taxes, with exceptions (Ind. Code § 6-4.1-12-12).

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

If the document is a public record, the Access to Public Records Act applies and overrides common law prohibitions in cases where there is a conflict between a statute and the common law.

With respect to court-derived exclusions, the Act prescribes a mandatory exemption from disclosure for materials that are “declared confidential by or under rules adopted by the supreme court of Indiana.” Ind. Code § 5-14-3-4(a)(8). In 2004, the Indiana Supreme Court adopted amendments to Administrative Rule 9, which governs access to court records. The rule’s intent is to balance the societal benefits of public access with the values of individual privacy. See Commentary to Ind. Admin. R. 9(A). However, the changes which took effect on January 1, 2005, carve out exceptions to public access that have the potential to swallow the rule’s proclaimed framework of “presumptive openness.” See Ind. Admin. R. 9(G) (enumerating a non-exclusive list of information to which courts are authorized or required to bar public access). Among the myriad exemptions under the amended Rule 9 is an additional “catch-all” provision, which prohibits the disclosure of any information which is “excluded from public access by specific court order.” Ind. Admin. R. 9(G)(1)(c). Nonetheless, Rule 9 does require that, if the court prohibits access to a record, it must “use the least restrictive means and duration.” Ind. Admin. R. 9(G)(4)(d)(iv). Thus, although the potential effect of the Rule 9 amendment is quite large, more time must pass before its practical implications are known, and certain provisions of the rule may work to minimize the impact of the public access exemptions.

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

In 2001, a mandatory exception was added to bar disclosure of “a photograph, a video recording, or an audio recording of an autopsy, except as provided in [Ind. Code §] 36-2-14-10.” Ind. Code § 5-14-3-4(a)(11). The same law also amended Indiana Code Section 36-2-14-10 to declare autopsy photographs, video recordings, or audio recordings confidential for the purposes of § 5-14-3-4(a)(1), except in certain instances involving a surviving spouse, a government agent acting in an official capacity, or a coroner using the materials for training or educational purposes. Ind. Code § 36-2-14-10(b)–(e); see also Ind. P.L. 271-2001, §§ 1, 3, 4 (enumerating permitted and prohibited disclosures of autopsy records under Ind. Code §§ 5-14-3-4(a)(1), 16-39-7.1 and 36-2-14-10). The identifying information must also be removed from the disclosed material. . Ind. Code § 36-2-14-10(b)–(e). “Identifying information” includes the deceased person’s name, address, Social Security number, a full view of the face, or identifying marks on the body that are unrelated to the medical condition or medical status. Ind. Code § 36-2-14-10(e)(1)-(5).

The statute does not specifically address worker safety and health inspections or accident investigations by agencies other than law enforcement agencies. However, Indiana Code Section 22-3-4-3(a) denies public access to industrial accident reports and reports of attending physicians, unless the Indiana Industrial Board decides access is required in the public interest.

The statute does not specifically address active investigations. However, an agency may argue this information is encompassed by the exception for “records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making. Ind. Code § 5-14-3-4(b)(6).

Vehicle accident reports filed by a law enforcement officer are not confidential. Ind. Code § 9-26-2-3. See also Whitaker v. Apriss, 266 F.Supp. 3d 1103, 1110 (N.D. Ind. 2017) (holding that federal law prohibiting disclosure of personal information held by the Department of Motor Vehicles, does not reach police reports of vehicular accidents).

C. Bank records

Bank records of a public agency are subject to disclosure under the general provisions of the statute. Bank records of private entities may be disclosed if they are “filed with or received by a public agency pursuant to state statute.” Ind. Code § 5-14-3-4(a)(5).

D. Budgets

E. Business records, financial data, trade secrets

Records containing trade secrets are confidential. Ind. Code § 5-14-3-4(a)(4). Trade secrets are defined as: “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure and use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ind. Code § 24-2-3-2; see also id. § 5-14-3-2(t). Whether information constitutes “trade secrets” is an issue subject to judicial interpretation. See Indiana Bell Tel. Co. v. Indiana Util. Regulatory Comm’n, 810 N.E.2d 1179, 1187 (Ind. App. 2004) (telephone service providers’ responses to an Indiana agency’s survey were public records, not protected by trade secret exemption, where not all providers requested response confidentiality and where most of the information was very general); ESPN Prods., Inc. v. Indiana Dep’t of State Revenue, 28 N.E.3d 378, 381–82 (Ind. Tax Ct. 2015) (holding that a Production Services Agreement was exempt from disclosure under the trade secrets exemption).

Confidential financial information is exempt from disclosure, although financial information filed with a public agency pursuant to state statute is subject to disclosure. Ind. Code § 5-14-3-4(a)(5). Administrative or technical information that would jeopardize a record-keeping or security system may not be disclosed by public agency unless specifically required by law or court order. Ind. Code § 5-14-3-4(b)(10). See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626–27 (Ind. Ct. App. 1997) (holding that telephone numbers in and of themselves are neither technical nor administrative information).

F. Contracts, proposals and bids

The Access to Public Records Act does not specifically address such items, which are subject to disclosure under the general provisions of the statute. However, the statute excepts intra-agency or inter-agency deliberative material developed by a private or public contract. See Ind. Code § 5-14-3-4(b)(6).

State bidding laws require sealed bids. Ind. Code § 4-13.6-5-8. After the bids are opened, they are subject to public inspection and copying. Ind. Code § 4-13.6-2-9. Records of negotiations with certain enumerated agencies need not be disclosed while negotiations are in progress. Ind. Code § 5-14-3-4(b)(5). After negotiations have terminated, the terms of a final offer shall be disclosed. Id.

G. Collective bargaining records

The Access to Public Records Act does not specifically address collective bargaining records. However, under the Open Door Law, a public agency may meet in executive session to discuss collective bargaining strategy, Indiana Code Section 5-14-1.5-6.1(b)(2)(A), and records prepared for or developed during discussion in executive session may be withheld. Ind. Code § 5-14-3-4(b)(12).

H. Economic development records

The Indiana economic development corporation may declare application information exempt from disclosure under the Act. Ind. Code § 5-14-3-4(a)(10). Records of negotiations with the Indiana economic development corporation need not be disclosed while negotiations are in progress. Ind. Code § 5-14-3-4(b)(5). After negotiations have terminated, the terms of a final offer shall be disclosed. Id.

I. Election Records

There is no specific provision relating to election records in the Access to Public Records Act. However, under Indiana Code Chapter 3-7-30, certain information about those who register under the National Voter Registration Act (the “motor voter law”) is confidential.

Statewide voter registration lists are governed by Indiana Code Sections 3-7-26.3-1 et seq. Voter registration lists implicate Indiana Code Section 5-14-3-3(f), which does not require giving the public copies of lists unless the agency is “required to publish such lists and disseminate them to the public under a statute.” But if an agency creates a list of names and addresses, it must permit public inspection and creation of memoranda abstracts, unless the law prohibits such access. Id.Laudig v. Marion Cnty. Bd. of Voters Registration addressed this issue. 585 N.E.2d 700, 705–06 (Ind. Ct. App. 1992) (rejecting the petitioner’s argument that he was entitled to a copy of a computer tape containing the voter registration list.

J. Emergency Medical Services records

There is no specific provision relating to emergency medical services records in the Access to Public Records Act. However, Indiana Code Section 16-31-2-11 governs the accessibility of emergency medical service records. Any pre-hospital ambulance rescue or record that an emergency ambulance service employing paramedics or emergency medical technicians uses or compiles is generally confidential. However, certain information within these record is public: the date and time of the request for ambulance services; the reason for the request for assistance; the time and nature of the response to the request for ambulance services; the time of arrival at the scene where the patient was located; the time of departure from the scene where the patient was located; and the name of the facility, if any, to which the patient was delivered for further treatment and the time of arrival at that facility. Id. § 16-31-2-11(d). See also Opinion of the Public Access counselor 17-PC-167 (2017) (concluding that 911 calls are generally disclosable public records).

K. Gun permits

Under Indiana Code Section 35-47-2-3(l), information than an applicant submits to obtain or renew a gun license, information that the government obtains to investigate such application, and identifying information of gun license holders are confidential. However, law enforcement personnel seeking to determine the validity of a license to carry a handgun or for law enforcement purposes may obtain such information. Id. § 35-47-2-3(m). Further, persons conducting journalistic or academic work may obtain such information, but the only if all personal identifying information is redacted.

L. Homeland security and anti-terrorism measures

In 2003, the General Assembly amended Indiana Code Section 5-14-3-4(b)(19) to include an additional discretionary exemption for information “which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.” See Ind. P.L. 173-2003 § 17. This section authorizes public agencies, at their discretion, to bar public disclosure of the following:

(A) a record assembled, prepared or maintained to prevent, mitigate, or respond to an act of terrorism or an act of agricultural terrorism;

(B) vulnerability assessments;

(C) risk planning documents;

(D) needs assessments;

(E) threat assessments;

(F) intelligence assessments;

(G) domestic preparedness strategies;

(H) the location of community drinking water wells and surface water intakes;

(I) the emergency contact information of emergency responders and volunteers;

(J) infrastructure records that disclose the configuration of critical systems such as communication, electrical, ventilation, water and wastewater systems;

(K) detailed drawings or specifications of structural elements, floor plans, and operating, utility, or security systems of any building or facility located on an airport that is owned, occupied, leased, or maintained by a public agency;

(L) the home address, home telephone number, and emergency contact information for certain emergency responders and public safety officers.

Shortly after adopting the above exemption for materials whose disclosure would threaten public safety, the General Assembly added statutory guidelines that agencies must follow when using the Section 5-14-3-4(b)(19) exception to deny requests for records. The statute authorizes the agency to consult with the counterterrorism and security council, established under Indiana Code Section 10-19-8-1, prior to the denial. Ind. Code § 5-14-3-4.4(b). It further provides that, if the agency does deny the request under Section 5-14-3-4(b)(19), either the agency or the counterterrorism and security council must provide a general description of the record being withheld and of how disclosure of the record would have a reasonable likelihood of threatening the public safety. Id.

M. Hospital reports

Minutes or records of hospital medical staff meetings may be disclosed at the discretion of the hospital. Ind. Code § 5-14-3-4(b)(9). Patient medical records and charts may not be disclosed unless the patient gives written consent under Indiana Code Section 16-39. Ind. Code § 5-14-3-4(a)(9).

N. Personnel records

Public agencies have the discretion to refuse to disclose personnel records to anyone other than the employee or his representative. Ind. Code § 5-14-3-4(b)(8); see also S. Bend Tribune v. S. Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938–39 (Ind. Ct. App. 2000) (holding that information regarding candidates for the Superintendent fell within this exception). However, the following information must be disclosed to the public: the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment of present or former officers or employees of the agency, information relating to the status of any formal charge against the employee, and factual information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined. Id.

All personnel file information is available to the affected employee or his representative. See Att’y Gen. Op. 87-16 (1987) (employment contract of any public official or employee available for inspection or copying upon request). This subsection does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.

1. Salary

2. Disciplinary records

Information relating to the status of any formal charge against the employee, and information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined are subject to public access. Ind. Code § 5-14-3-4(b)(8) (excepting aspects of disciplinary action from the provision giving agencies discretion to deny access to personnel files).

3. Applications

Access to the files of applicants for public employment may be provided or denied at the discretion of the public agency. Ind. Code § 5-14-3-4(b)(8); see S. Bend Tribune v. S. Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938–39 (Ind. Ct. App. 2000) (holding that information regarding candidates for the Superintendent fell within this exception).

4. Personally identifying information

Certain personally identifiable personnel information must be provided under Indiana Code Section 5-14-3-4(b)(8): the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment of present or former officers or employees of the agency, information relating to the status of any formal charge against the employee, and information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined.

5. Expense reports

Expense reports are not specifically addressed in the statute. However, expense reports would typically not be contained in personnel files, but rather would be submitted to the agency’s financial officer for payment, and thus would be subject to public access under the general provisions of the Access to Public Records Act.

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

If a person is arrested or summoned for an offense, information that identifies the person, describes any charges on which the arrest or summons is based, and relates to the circumstances of the arrest or the issuance of the summons must be disclosed. Ind. Code § 5-14-3-5(a). If a person is received in a jail or lock-up, information that identifies the person, the reason for being placed in lock-up, including the name of the person on whose order the person is being held, the time and date that the person was received, the time and date of the person’s discharge, and the amount of the person’s bail or bond, if fixed, shall be disclosed. Ind. Code § 5-14-3-5(b).

In 2016, the General Assembly added statutory provisions governing “dash camera” and “body camera)) recordings, defined as “an audio, visual, or audiovisual recording of a law enforcement activity captured by a camera or other device that is: (1) provided to or used by a law enforcement officer in the scope of the officer’s duties; and (2) designed to be worn by a law enforcement officer or attached to the vehicle or transportation of a law enforcement officer.” Ind. Code § 5-14-3-2(k). Indiana Code 5-14-3-5.2(a) provides that a public agency may allow anyone to inspect and copy law enforcement recordings, unless one of the delineated exceptions applies. Additionally, the General Assembly enacted provisions requiring public agencies to retain unaltered or unobscured law enforcement recordings. See Ind. Code § 5-14-3-5.3.

1. Accident reports

Accident reports are not specifically addressed under the Access to Public Records Act, but they are addressed under other statutory sections. Vehicle accident reports filed by a law enforcement officer are not confidential. Ind. Code § 9-26-2-3. However, other accident reports may only be used for state agencies, with exceptions. Id. § 9-26-2-4; see Madison v. Hawkins, 644 N.E.2d 184, 187 (Ind. Ct. App. 1994) (holding that the statute protected the accident report from discovery).

2. Police blotter

The Access to Public Records Act requires police agencies to maintain a daily log or record that lists suspected crimes, accidents, or complaints. Ind. Code § 5-14-3-5(c). The record containing the information must be created not later than twenty-four hours after the suspected crime, accident, or complaint has been reported to the agency. Id.

3. 911 tapes

There is no statutory and little case law addressing this issue. See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626 (Ind. Ct. App. 1997) (“The City begins with the premise, and we do not disagree, that the E–911 system is a record keeping or security system.”). A 2017 Public Access Counselor opinion addressed the question of whether 911 recordings are investigatory records under Indiana Code Section 5-14-3-4(b)(1). Opinion of the Public Access Counselor, Hasnie v. Carroll Cnty. E-911, 17-FC-167. The Counselor opined that Carroll E-911 was not a “law enforcement agency” under the Access to Public Records Act, but even if it were, the investigatory records exception would not apply because the information sought was not “compiled in the investigation of a crime.” Id. The Counselor cited prior opinions that many 911 calls do not involved crime investigation and that 911 tapes are presumed to be records subject to public disclosure. Id. (citing Opinion of the Public Access Counselor 08-FC-64).

4. Investigatory records

Under Indiana Code Section 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. The statute does not distinguish between active or closed investigations.

However, under Indiana Code Section 5-14-3-5(b)(1), certain law enforcement information must be made available. See Althaus v. Evansville Courier Co., 615 N.E.2d 441, 446 (Ind. Ct. App. 1993) (holding that the investigatory records exception applied to the coroner’s files). This includes information about an individual who is arrested or jailed and also police logs of crimes, accidents and complaints. Ind. Code § 5-14-3-5(b)(1); see Post-Tribune v. Police Dep’t of City of Gary, 643 N.E.2d 307, 308–09 (Ind. 1994) (holding that the police department satisfied its obligation to provide the “location” of rape by providing the most specific location that reasonably protected the victim’s privacy, not requiring the department to provide the exact address). Criminal intelligence information is confidential under Indiana Code Section 5-2-4-6 and is an exception to the general disclosure rule under Section 5-14-3-4(b)(25).

5. Arrest records

If a person is arrested or summoned for an offense, information that identifies the person, describes any charges on which the arrest or summons is based, and relates to the circumstances of the arrest or the issuance of the summons must be disclosed. Ind. Code § 5-14-3-5(a). If a person is received in a jail or lock-up, information that identifies the person, the reason for being placed in lock-up, including the name of the person on whose order the person is being held, the time and date that the person was received, the time and date of the person’s discharge, and the amount of the person’s bail or bond, if fixed, shall be disclosed. Ind. Code § 5-14-3-5(b).

6. Compilations of criminal histories

Access to criminal histories is governed by Indiana Code Section 10-13-3-27. Access is permitted only in sixteen instances, including if the individual has applied for employment with the requestor; is a candidate for public office or is a public official; has been or is in the process of being arrested; or has been convicted of major felonies; is a volunteer at a public school or at an organization where contact with children is expected; is being sought by a parent locator service; is a registered sex or violent offender. Id.

7. Victims

Ind. Code Section 5-14-3-5(c)(3)(B) requires law enforcement agencies to provide the name and age of victims of crimes or infractions, unless the person is a victim of the sex crimes enumerated in Indiana Code Section 35-42-4-1 et seq.including rape, criminal deviate conduct, child molesting, child seduction, child solicitation, and sexual battery or a victim of human and sexual trafficking under 35-42-3.5 et seq.

8. Confessions

Under Indiana Code § 5-14-3-4(b)(1), access to investigatory records of law enforcement agencies may be provided or denied at the agency’s discretion. If the confession is admitted as evidence at a court hearing or trial, the public is entitled to access under the First Amendment and common law rights of access to judicial records. See State ex re. Post-Tribune Pub. Co. v. Porter Superior Ct., 412 N.E.2d 748, 751 (Ind. 1980). See also, Ind. Admin. R. 9.

9. Confidential informants

Indiana Code Section 4-2-7-8 provides that the identity of any individual who discloses in good faith to the inspector general information alleging a violation of a state or federal statute, rule, regulation, or ordinance is confidential and may not be disclosed to anyone other than the governor, the staff of the office of the inspector general, or an authority to whom the investigation is subsequently referred or certified, unless: (1) the inspector general determines in writing disclosure is in the public interest, or the individual consents to disclosure. Otherwise, confidential informants would be encompassed by Indiana Code Section 5-14-3-4(b)(1), which gives law enforcement agencies discretion to provide or deny access to investigatory records.

10. Police techniques

There is no statutory or case law addressing this issue, except the general exception under Indiana Code Section 5-14-3-4(b)(1)for law enforcement investigatory records, which may be released at the agency’s discretion. Criminal intelligence information is confidential under Indiana Code Section 5-2-4-6.

11. Mugshots

There is no statutory or case law addressing this issue. Some police agencies have invoked the exception for law enforcement investigatory records, which under Ind. Code Section 5-14-3-4(b)(1) may be provided or denied at the agency’s discretion.

13. Emergency medical services records

There is no specific provision relating to emergency medical services records in the Access to Public Records Act. However, Indiana Code Section 16-31-2-11 governs the accessibility of emergency medical service records. Any pre-hospital ambulance rescue or record that an emergency ambulance service employing paramedics or emergency medical technicians uses or compiles is generally confidential. However, certain information within these record is public: the date and time of the request for ambulance services; the reason for the request for assistance; the time and nature of the response to the request for ambulance services; the time of arrival at the scene where the patient was located; the time of departure from the scene where the patient was located; and the name of the facility, if any, to which the patient was delivered for further treatment and the time of arrival at that facility. Id. § 16-31-2-11(d).

Q. Professional licensing records

There is no statutory provision or case law on professional licensing records generally. However, Indiana Code Section 5-14-3-4(a)(7) prohibits agencies from disclosing “[g]rade transcripts and license examination scores obtained as part of a licensure process,” and Indiana Code Sections 5-14-3-4(b)(3)­, (4) gives agencies discretion to disclose “[t]est questions, scoring keys, and other examination data used in administering a licensing examination . . . .” and “[s]cores of tests if the person is identified by name and has not consented to the release of the person’s scores.” Additionally, professional licensing records could be limited if they are included in personnel files. See Ind. Code § 5-14-3-4(8).

R. Public utility records

Under Indiana Code Section 5-14-3-4(b)(20), access to the telephone number, address, and Social Security number of a customer of a municipally owned utility may be provided or denied at the discretion of the municipal utility. Additionally, Indiana Code Section 8-1-2-40 provides that the Utility Regulatory Commission must keep a copy of the rates and charges schedule open to the public as the commission deems necessary. However, Indiana Code Section 8-1-2-49(1) states that anyone who is not a commissioner must produce authority to inspect the books, accounts, papers, records, and memoranda of any public utility, suggesting that the public’s ability to access public utility records is limited.

S. Real estate appraisals, negotiations

1. Appraisals

Under Indiana Code Section 8-23-2-6(c), appraisals conducted by or for the Indiana Department of Transportation are confidential. Other agencies often try to rely on the more general language of Indiana Code Section 5-14-3-4(b)(6), which permits them to provide or deny access, in their discretion, to records that are advisory or deliberative material that are expressions of opinion or are speculative and are communicated for decision-making purposes.

2. Negotiations

Access to records relating to pending negotiations involving certain enumerated agencies and commissions with industrial, research or commercial prospects may be released or denied at the discretion of the agency, under Ind. Code § 5-14-3-4(b)(5). Final offers must be released.

3. Transactions

The Access to Public Records Act does not specifically address transactions, but there is no exception that would deny access to records of completed transactions by a public agency. Under Indiana Code Section 32-21-5-1et seq., publicly filed disclosure forms are required for many residential real estate salestransactions.

4. Deeds, liens, foreclosures, title history

The Access to Public Records Act does not specifically address deeds, liens, foreclosures or title histories. Deeds and liens are filed with the county recorder’s office for the county in which the property is located, and thus would be subject to public access under the general provisions of the Act. Foreclosure records are available from the court in which the foreclosure is pending.

T. School and university records

1. Athletic records

The Access to Public Records Act does not specifically address such records. However, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, prohibits the release of student-identifying information by schools that receive federal funds. Thus such records are also confidential under Indiana Code Section 5-14-3-4(a)(3), which denies access to records which are confidential under federal law. Additionally, schools have relied on the deliberative material exception, Ind. Code § 5-14-3-4(b)(6) to not disclose athletic misconduct. See Journal Gazette v. Bd. of Trs. of Purdue Univ., 698 N.E.2d 826, 830 (Ind. Ct. App. 1998) (denying access to grievances about alleged NCAA violations); see also Unincorporated Operating Div. of Indiana Newspapers, Inc. v. Trs. of Indiana Univ., 787 N.E.2d 893, 914–15 (Ind. App. 2003) (Most of a state university’s investigatory materials regarding a controversial basketball coach were protected from public access, but a newspaper could access certain materials after student and deliberative information were redacted).

2. Trustee records

The Access to Public Records Act does not specifically address such records, but universities often try to rely on the more general language of Indiana Code Section 5-14-3-4(b)(6), which permits them to provide or deny access, in their discretion, to records that are advisory or deliberative material that are expressions of opinion or are speculative, and are communicated for decision-making purposes, or attempt to characterize them as diaries, journals or other personal notes. Ind. Code § 5-14-3-4(b)(7). See also Unincorporated Operating Div. of Indiana Newspapers, Inc. v. Trs. of Indiana Univ., 787 N.E.2d 893, 914–15 (Ind. App. 2003) (Most of a state university’s investigatory materials maintained by trustees regarding a controversial basketball coach were protected from public access, but a newspaper could access certain materials after student and deliberative information were redacted).

3. Student records

Grade transcripts are confidential under Indiana Code Section 5-14-3-4(a)(7). The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, prohibits the release of student-identifying information by schools that receive federal funds. Thus, such records are also confidential under Indiana Code Section 5-14-3-4(a)(3), which denies access to records which are confidential under federal law.

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

The job title, business address, business telephone number, job description, education and training background, previous work experience, and the dates of first and last employment of present or former officers or employees of the agency are among the categories of information subject to public access, even if an agency exercises its discretion to deny access to personnel files of public employees or officials. Ind. Code § 5-14-3-4(b)(8).

U. State guard records

V. Tax records

Under the common law, “[t]axpayers of a municipality have a right to examine its books and records at proper times for any legitimate purpose.” Michigan City v. Marwick, 116 N.E. 434, 436 (Ind. App. 1917). However, statutes may limit the disclosure of tax records. See Ind. Code § 6-1.1-35-9 (limiting information relating to earnings, income, profits, losses, or expenditures between officials in the property tax context); id. § 6-4.1-12-12 (limiting the Department of Revenue’s disclosure of inheritance tax files); id. § 6-8.1-7-1 (limiting the Department of Revenue’s disclosure of the amount of tax paid relating to listed taxes when the information is agreed to be confidential); see also Brandenburg Indus. Serv. Co. v. Indiana Dep’t of State Revenue, 26 N.E.3d 147, 154 (holding that two pages of handwritten notes of the Department of State Revenue were not barred from disclosure under this exception because the deliberative materials exception applies to the general public rather than the litigants) (Ind. Tax Ct. 2015).

W. Vital Statistics

1. Birth certificates

Birth certificates are not public records. However, Indiana Code Section 16-37-2-9 requires local health offices to make a permanent record of and provide access to the following information from birth certificates: name, sex, date and place of birth, parents’ names and birthplaces, and the date the birth certificate was filed. The birth record of an adopted child, however, remains confidential under Indiana Code Article 31-19.

2. Marriage and divorce

Marriage licenses, applications for marriage licenses, and marriage certificates are public records maintained by the clerk of each circuit court. Ind. Code § 31-11-4-4(b). The State Department of Health is required to prepare an annual index of all marriages solemnized in Indiana and provide at least one copy of the index to the Indiana State Library. Ind. Code § 31-11-4-18. Statistical data derived from marriage records are open to public inspection. Ind. Code §31-11-4-19.

3. Death certificates

Death certificates are not public records. However, Indiana Code Section 16-37-3-9 requires local health offices to make a permanent record of and provide access to the following information from death certificates: name, sex, age, residence addresses for the decedent for two years before the death, and the place of death. See also Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t, 17 N.E.3d 922, 924 (Ind. 2014) (holding that, under the Access to Public Records Act, a county health department must provide public access to death certificates that doctors, coroners, and funeral directors file).

4. Infectious disease and health epidemics

There is no statutory or case law addressing this issue specifically. However, local health officers must keep full and permanent records of the local health department’s public health work. Ind. Code § 16-20-1-10. Additionally, the state department must publicly release inspection reports, but not until the recipient of an inspection report has had ten days to respond. Ind. Code § 16-19-3-25(b). However, the state department may release the report earlier than ten days after it is issued to protect the public or consumers of health services from an “imminent threat to health or safety.”

IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

2. Does the law cover oral requests?

Yes. The request for records may be made orally or in writing. See Ind. Code § 5-14-3-9(b), (d). But see Ind. Code § 5-14-3-3(a) (agency has discretion to require request to be in writing or in a form provided by the agency). Note that if the request is made orally, the agency may deny the request orally. Ind. Code § 5-14-3-9(c).

The requester may renew the oral request in writing. See Ind. Code § 5-14-3-9(d). If a written request is denied, the denial must be in writing and include a statement of the specific exemption authorizing the withholding of all or part of the public record and the name and the title or position of the person responsible for the denial. Ind. Code § 5-14-3-9(d). The statute does not address later steps, short of an advisory opinion by the public access counselor or litigation.

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

Under Indiana Code Section 5-14-3-9, a denial is deemed to occur: (a) in the case of a request for the record made in person or by telephone, immediately upon refusal by a person designated by an agency to make records disclosure decisions, or 24 hours after any other employee of the agency refuses to permit inspection and copying of the public record; or (b) in the case of a request by mail or facsimile, seven days after the request has been received. However, an agency that agrees to provide records may not violate the statute if it fails to provide the records within the statutory time frame if the agency provides the records within a reasonable time and advises the requestor that the agency is not challenging the right to the documents. SeeHrstich v. City of E. Chicago, 862 N.E.2d 9 (Ind. Ct. App. 2007) (unpublished).

Importantly, there is no set timeframe in which a public agency must actually produce the records. The agency is merely required to produce the documents or allow the requestor to make copies within a reasonable time. Ind. Code § 5-14-3-3(b).

2. Informal telephone inquiry as to status

There is nothing stopping the requestor from informally inquiring as to the status of the request, but the agency is merely required to produce the documents or allow the requestor to make copies within a reasonable time, so the inquiry may not yield any results. Ind. Code § 5-14-3-3(b).

Note that telephone inquiries are treated as the equivalent of an in-person request. See Ind. Code § 5-14-3-9(b).

3. Is delay recognized as a denial for appeal purposes?

If a written request has been made and there is no response for more than seven days, the request is deemed to be denied. Ind. Code § 5-14-3-9(b). In the case of an in-person oral request, a delay of 24 hours or more in responding to the request is deemed to be a denial. Id.

The agency must produce the documents or allow the requestor to make copies within a reasonable time, so a reviewing court could find that the agency’s delay was unreasonable. Ind. Code § 5-14-3-3(b). However, an agency that agrees to provide records may not violate the statute if it fails to provide the records within the statutory time frame if the agency provides the records within a reasonable time and advises the requestor that the agency is not challenging the right to the documents. SeeHrstich v. City of E. Chicago, 862 N.E.2d 9 (Ind. Ct. App. 2007) (unpublished).

4. Any other recourse to encourage a response

To encourage a response, a savvy requester should seek the intervention of the agency’s legal officer or public relations officer, the requester’s legislator, or a political appointee in the agency who might be more responsive.

C. Administrative appeal

There are no administrative appeals procedures under the Act. A person denied access is advised to seek the intervention of the state Public Access Counselor, not only to facilitate access to the record, but also to lay the foundation for entitlement to attorney fees if litigation is required. Ind. Code § 5-14-3-9(i).

1. Time limit to file an appeal

2. To whom is an appeal directed?

Because there is no administrative appeals process, there is no specific person to whom further requests should be made. A savvy requester will seek to have either the agency’s public information officer or legal counsel intervene.

The Office of the Public Access Counselor responds to inquiries from the public and public agencies on public access issues. Ind. Code § 5-14-4-10. An individual or a public agency denied the right to inspect or copy records may file a formal complaint or make an informal inquiry with the Counselor. Ind. Code § 5-14-5-6. The complaint must be filed within 30 days of the denial of access. Ind. Code § 5-14-5-7. Once the Public Access Counselor receives the complaint, a copy must be forwarded immediately to the public agency that is the subject of the complaint. Ind. Code § 5-14-5-8. The Public Access Counselor may conduct an investigation, and the public agency is required to cooperate in any investigation. Ind. Code § 5-14-5-5. The Public Access Counselor is required to issue an advisory opinion not later than thirty days after the complaint is filed. Ind. Code § 5-14-5-9. If the Public Access Counselor determines that a complaint has priority, an advisory opinion must be issued within seven days. Ind. Code § 5-14-5-10. The statute of limitations for filing a lawsuit is not tolled by filing a formal complaint with the Public Access Counselor. Ind. Code § 5-14-5-12. The Public Access Counselor’s advisory and informal opinions are available at http://www.in.gov/pac.

The attorney general has no responsibility for public access issues under the Act. The attorney general is, however, may investigate and enforce violations of the Social Security number confidentiality law, Indiana Code Section 4-1-10, effective July 1, 2005. Ind. Code § 4-1-10-11.

4. Contents of appeal

5. Waiting for a response

6. Subsequent remedies

Because there is no administrative appeals process, there are no “subsequent remedies.” However, an aggrieved party may submit an inquiry to or file a complaint with the Public Access Counselor, Ind. Code § 5-14-5-6, and may file an action with the court, Ind. Code § 5-14-3-9(e).

D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any person or organization who has been denied the right to inspect or copy a public record by a public agency may file an action in the circuit or superior court of the county in which the denial occurred. Ind. Code § 5-14-3-9(e).

2. Priority

The statute provides that any hearing in an action under the Access to Public Records Act shall be expedited. Ind. Code § 5-14-3-9(l). Also, an unsuccessful requester would be wise to seek a temporary restraining order or an injunction, as those proceedings are given docket priority.

3. Pro se

An individual (but not a corporation) may appear pro se, but pro se litigants are held to the same standard as parties represented by counsel. Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind. App. 1995). Therefore, it is not advisable to proceed pro se unless the individual has an intimate knowledge of legal procedures and analysis. Additionally, a pro se party may not receive attorney’s fees under the Access to Public Records Act. Marion Cnty. Election Bd. v. Bowes, 53 N.E.3d 1203, 1209 (Ind. Ct. App. 2016).

4. Issues the court will address

a. Denial

b. Fees for records

A court would presumably address fee issues if the public agency does not follow the statutory requirements. See Ind. Code § 5-14-3-8. If an agency charges excessive fees for records and those fees amount to a denial of access, a court could address this issue as a constructive denial, but no published opinions have considered the issue. Unreasonable fees may implicate Indiana Code Section 5-14-3-4(g), which states that “[e]xcept as provided by law, a public agency may not adopt a rule or procedure nor impose any costs or liabilities that impede or restrict the reproduction or dissemination of any public record.”

c. Delays

To the extent that delays in responding to a written request for records are deemed to be a denial under the statute, the court could address this issue.

The agency must produce the documents or allow the requestor to make copies within a reasonable time, so a reviewing court could find that the agency’s delay was unreasonable. Ind. Code § 5-14-3-3(b). However, an agency that agrees to provide records may not violate the statute if it fails to provide the records within the statutory time frame if the agency provides the records within a reasonable time and advises the requestor that the agency is not challenging the right to the documents. SeeHrstich v. City of E. Chicago, 862 N.E.2d 9 (Ind. Ct. App. 2007) (unpublished).

d. Patterns for future access (declaratory judgment)

The Access to Public Records Act does not contemplate declaratory judgment actions unless there has been a denial. However, the Indiana Convention and Visitors Association brought a declaratory judgment action to determine if it must respond to a request for disclosure from Indianapolis Newspapers Inc. Indianapolis Convention and Visitors Ass’n Inc. v. Indianapolis Newspapers Inc., 577 N.E.2d 208 (Ind. 1991). The answer was yes because the association was a “public agency.” Id.

5. Pleading format

Pleading forms are governed by Rule 10 of the Indiana Rules of Trial Procedure. Pleading captions must include the names of the parties, the title of the action, the court and case number. The pleadings must be signed, and copies served on all other parties or their counsel.

6. Time limit for filing suit

Interestingly, the law does not specify a time limit for filing suit for denial of access; however, suit may not be filed until there is a denial of access. Ind. Code § 5-14-3-9(e). However, filing an informal complaint or a formal complaint to the Public Access Counselor does not toll the statute of limitations for the underlying action. Id. § 5-14-4-13; 5-14-5-12.

7. What court?

8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

The court shall award attorney fees to a plaintiff who substantially prevails, provided the plaintiff sought and received an informal inquiry response or advisory opinion from the Public Access Counselor before filing suit, unless plaintiff can show the action was necessary because the denial of access would prevent the plaintiff from presenting that public record to a public agency preparing to act on a matter of relevance to the public record. Ind. Code § 5-14-3-9(i). Note that subsection (k) applies to a denial of a law enforcement recording. Under this subsection, a requestor seeking a law enforcement recording may bring suit without first seeking an informal inquiry or an advisory opinion from the Public Access Counselor, and the request may receive attorney’s fees if the requestor prevails. Ind. Code § 5-14-3-9(k)

An award of attorney fees to a defendant who substantially prevails is discretionary if the court finds the action was frivolous or vexatious. Ind. Code § 5-14-3-9(i). See Anderson v. Huntington Cnty. Bod. Of Comm’rs for an example of when a plaintiff does not “substantially” prevail. 983 N.E.2d 613, 619 (Ind. Ct. App. 2013) (holding that the plaintiff did not “substantially” prevail because his requests were not reasonably particular). A defendant may not avoid attorney fees by claiming that it did not intend to violate the Access to Public Records Act, and a court may second-guess that defendant’s argument that the defendant denied the request in good faith. City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 628 (Ind. Ct. App. 1997). Note that the court in City of Elkhart states that it is within the trial court’s discretion to award attorney fees to the plaintiff, but the statute has since been amended to provide mandatory attorney fees to the substantially prevailing plaintiff. Id. at 627; Ind. Code § 5-14-3-9(i). The court may allocate attorney fees between the public agency and a private entity by considering various factors. See Shepard Props. Co. v. Int’l Union of Painters and Allied Trades, 972 N.E.2d 845, 853 (Ind. 2012).

Attorney fees are awarded from the date of the Public Access Counselor’s opinion until the date a prevailing party is determined. Indianapolis Newspapers v. Indiana State Lottery Comm’n, 739 N.E.2d 144, 156 (Ind. Ct. App. 2000). They are not to be limited by disclosure of the requested records if litigation is still pending. See id. (holding that the Lottery remained liable for attorney’s fees until a determination of whether the denial of access was proper); Hydrotech Corp. v. Ind. Office of Envt’l Adjudication, 862 N.E.2d 10 (Ind. Ct. App. 2007) (unpublished) (holding that the trial court erred by limiting the attorney’s fee award).

b. Court and litigation costs

Under the Indiana Trial Rules generally, costs are awarded to the prevailing party as a matter of course,. Ind. Trial Rule 54(D). In addition to attorney fees, the Access to Public Records Act specifically provides that the court shall award “court costs and other reasonable litigation expenses” to the party who substantially prevails. Ind. Code § 5-14-3-9(i). See Anderson v. Huntington Cnty. Bod. Of Comm’rs for an example of when a plaintiff does not “substantially” prevail. 983 N.E.2d 613, 619 (Ind. Ct. App. 2013) (holding that the plaintiff did not “substantially” prevail because his requests were not reasonably particular).

11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

An adverse decision is appealed to the Indiana Court of Appeals, see Indiana Appellate Rule 5, although a party can seek to go directly to the Supreme Court under Rule 56 of the Rules of Appellate Procedure in rare cases.

2. Time limits for filing appeals

A notice of appeal must be filed with the trial court clerk within 30 days after the entry of a final judgment or within 30 days after the notation of an interlocutory order. Ind. R. App. P. 9(A)(1); 14. The notice of appeal has replaced the praecipe for appeal. App. R. 2(I); 9(A)(4). Failure to file the notice of appeal means that the appellate court does not have jurisdiction, Neu v. Gibson, 968 N.E.2d 262, 269 (Ind. Ct. App. 2012), and will forfeit the right to appeal, App. R. 9(A)(5).

Within 30 days of a party filing of a notice of appeal, the trial court clerk must assemble the Clerk’s Record, which consists of the chronological case summary and all papers, pleadings, documents, orders, judgments and other materials filed in the trial court. App. R. 2(E), 10(B). Within 45 days of the appellant filing the Notice of Appeal, the court reporter must file the Transcript with the trial court clerk. App. R. 11(B). Briefing deadlines are tied to the date the record is filed. App. R. 45.

3. Contact of interested amici

Amicus briefs may be filed only by leave of court, granted on motion of the amicus or at the request of the court. App. R. 41. When moving for leave to file an amicus curiae brief, the movant must file an appearance form with the clerk that contains the information specified in App. R. 16(D); 41(A). Unless the court permits the belated filing on motion for good cause, the amicus brief must be filed within the time set for the party the amicus is supporting. App. R. 41(B)–(D). So if a party wants to contact interested amici, it must be done as soon as possible, but in any event no later than when the record is being prepared.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

Members of the public may attend public meetings. Ind. Code § 5-14-1.5-3(a). At the heart of the Open Door Law is the requirement that meetings of “the governing bodies of public agencies” must be open to allow members of the public to “observe and record them.” Id. This does not mean that the law guarantees a citizen the right to speak; rather, it guarantees public access to the meetings.

B. What governments are subject to the law?

The law applies to “public agencies” of the state, counties, townships, school corporations, cities, towns, political subdivisions or other entities exercising the administrative, executive or legislative power of the state or a delegated local governmental power, among others. Ind. Code § 5-14-1.5-2(a). The definition of “public agency” is broad enough to include almost any group that receives public funding support (as opposed to payment for measurable goods and services) or which gets its authority through the executive, administrative or legislative power of the state or local governments. However, “public agency” does not include certain providers of goods or services that are not required to be audited. See Ind. Code § 5-14-1.5-2.1.

2. County

3. Local or municipal

C. What bodies are covered by the law?

The Open Door Law applies to “all meetings of the governing bodies of public agencies.” Ind. Code § 5-14-1.5-3(a). What constitutes a “public agency” is explained in Indiana Code Section 5-14-1.5-2(a), and what constitutes a “governing body” is explained in Indiana Code Section 5-14-1.5-2(b). See also Indiana State Bd. of Health v. Journal-Gazette Co., 608 N.E.2d 989, 993 (Ind. Ct. App. 1993) (holding that “the informal reconsideration meeting was not one conducted by any “governing body” of the Indiana State Department of Health, nor was it a meeting of any advisory committee directly appointed by the ISBH”); Frye v. Vigo Cnty., 769 N.E.2d 188, 196 (Ind. Ct. App. 2002) (holding that the Grievance Panel was not appointed directly by the County Commissioners, so it was not subject to the Open Door Law); Citizens Acton Coalition of Indiana Inc. v. Pub. Serv. Comm’n of Indiana, 425 N.E.2d 178, 185 (Ind. Ct. App. 1981) (holding that the Public Service Commission is subject to the Open Door Law, even though it exercises quasi-judicial functions).

1. Executive branch agencies

Any entity exercising executive or administrative power of the state or its political subdivisions is covered as a “public agency.” Ind. Code § 5.14-1.5-2(a)(1)–(2). In addition, any entity that is subject to budget review by the State Board of Tax Commissioners or the governing body of a county, city, town, township or school corporation or subject to audit by the State Board of Accounts required by statute, rule or regulation also is subject to the Act. Id. § 5.14-1.5-2(a)(3); see also Perry Cnty. Dev. Corp. v. Kempf, 712 N.E.2d 1020, 1025 (Ind. Ct. App. 1999) (“An entity does not become a ‘public agency,’ thus coming within the purview of the statutes in question, by contractually agreeing to submit to an audit or budget review, as is the case here. Rather, an entity is “subject to” those procedures only if compelled to submit by statute, rule, or regulation.”). Any advisory commission or other body created by statute, ordinance or executive order to advise the governing body of a public agency is subject to the Act, as well as any building corporation that issues bonds to construct public facilities. Ind. Code § 5-14-1.5-2(a)(4), (5). Individual office-holders are not “public agencies,” so the statute does not require the governor, mayor or other chief executive to open their meetings to the public, see Ind. Code § 5-14-1.5-2(a), unless they are meeting with the majority of the governing body of a public agency (which constitutes a meeting of that agency under the Open Door Law.). See Ind. Code § 5-14-1.5-2(a).

c. Are only certain agencies subject to the act?

2. Legislative bodies

Unless covered by a specific exemption, all meetings of legislative bodies are subject to the Act. Ind. Code § 5-14-3-2(a). However, the Indiana Supreme Court has held that separation of powers considerations prevent the courts from enforcing the access statutes against the Indiana General Assembly. State ex rel. Masariu v. Marion Superior Court No.1, 621 N.E.2d 1097,1098 (Ind. 1993). Also, although the Open Door Law’s definition of a “public agency” applies to all entities that exercise “a portion of the . . . legislative power of the state,” the statute explicitly exempts the General Assembly from its public notice of meetings requirements. Ind. Code § 5-14-1.5-5(g).

3. Courts

Courts are not subject to the Open Door Law; unlike the Access to Public Records Act, which includes entities exercising the “judicial . . . power of the state,” Ind. Code § 5-14-3-2(q), the Open Door Law does not include “judicial . . . power of the state.” See Ind. Code § 5-14-1.5-2(a)(1) (defining public agencies as entities “exercising a portion of the executive, administrative, or legislative power of the state”). However, the Public Access to Criminal Proceedings Law, Ind. Code §§ 5-14-2-1 et seq., governs efforts to close criminal court proceedings, which are presumptively open to public attendance. Ind. Code § 5-14-2-2. Efforts to close civil proceedings are governed by constitutional and common law rights of access. See Ind. Const. Art. I § 12; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (Ind. 1980) (quoting Bridges v. California, 314 U.S. 252, 263 (1941).

4. Nongovernmental bodies receiving public funds or benefits

If the body is subject to budget review by the State Board of Tax Commissioners or the governing body of a local government agency, or an audit by the State Board of Accounts, it is subject to the Act. Ind. Code § 5-14-1.5-2(a)(3).

In 2007, the statute was amended to clarify that providers of goods and services are not public agencies subject to the Open Door Law if they meet the following criteria: (1) the provider receives public funds through an agreement with the public entity, in exchange for services, goods, or other benefits; (2) the amount of fees received does not involve a consideration of tax revenues of the public entity; (3) the public entity negotiates the fee; (4) the public entity is billed for services or goods actually provided; and (5) the provider is not required to be audited by the state board of accounts. Ind. Code § 5-14-1.5-2.1.

The mere fact that a governmental official is a member of a non-governmental group does not bring the group within the ambit of the Open Door Law. See Ind. Code § 5-14-1.5-2(a). The group would have to exercise executive, administrative or legislative power of the state or its political subdivisions, be subject to audit by the State Board of Accounts or budget review by state or local governments, be a building corporation which issues bonds to construct public facilities, or be an advisory commission created to advise the governing body of a public agency in order to be covered by the Act. Ind. Code § 5-14-1.5-2(a).

7. Advisory boards and commissions, quasi-governmental entities

Any advisory commission created by statute, ordinance or executive order to advise the governing body of a public agency is covered by the Act. Ind. Code § 5-14-1.5-2(a)(5). Additionally, the Indiana Gaming Commission and the Indiana Horse Racing Commission are covered. Id. Ind. Code § 5-14-1.5-2(a)(4), (5).

8. Other bodies to which governmental or public functions are delegated

No matter what these bodies call themselves, if they exercise executive, administrative or legislative power of the state or are subject to public budget review, they would be covered by the Act. See Ind. Code § 5-14-1.5-2(a).

9. Appointed as well as elected bodies

D. What constitutes a meeting subject to the law

1. Number that must be present

The statute defines meeting as “a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business.” Ind. Code § 5-14-1.5-2(c). It does not include:

- Social or chance gatherings not intended to avoid the Open Door Law;

- On-site inspections of any project, program, or facilities of applicants for incentives or assistance from the governing body;

- Traveling to (but not from!) and attending meetings of organizations devoted to betterment of government; or

- A “caucus.” The statute defines “caucus” as a gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action. Ind. Code § 5-14-1.5-2(h); see also Evansville Courier v. Willner, 563 N.E.2d 1269, 1271 (Ind. 1990) (“If the persons attending such [political] meetings happen to constitute a majority of a governing body, such a caucus is not thereby transformed into a meeting subject to full public scrutiny under the Open Door Law. It is the taking of official action which changes the character of a majority political party strategy meeting from a private caucus to a public meeting.”).

- A gathering to discuss an industrial or a commercial prospect that does not include a conclusion as to recommendations, policy, decisions, or final action on the terms of a request or an offer of public financial resources;

- An orientation of members of the governing body on their role and responsibilities as public officials, but not for any other official action; or

- A gathering for the sole purpose of administering an oath of office to an individual.

- Collective bargaining discussions that the governing body of a school corporation engages in directly with bargaining adversaries, and the governing body has not appointed an agent or agents to conduct collective bargaining on behalf of the governing body as described in Section 5-14-1.5-2(b)(3).

a. Must a minimum number be present to constitute a "meeting"?

b. What effect does absence of a quorum have?

The law does not speak in terms of quorums, but rather majorities. There must be a majority present for the statute to apply. Ind. Code § 5-14-1.5-2(c). See City of Gary v. McCrady, 851 N.E.2d 359, 367 (Ind. Ct. App. 2006) (holding that there was no “meeting” because there was less than a majority present).

In 2006, the Indiana Court of Appeals found no violation of the Act when meetings were held in groups constituting less than a majority, “in direct contravention to the public policy behind the Open Door Law.” Dillman v. Trustees of Ind. Univ., 848 N.E.2d 348, 352 (Ind. Ct. App. 2006). Accordingly, in 2007, the General Assembly amended the Open Door Law to prohibit such “serial” meetings where members of the governing body participate in two or more gatherings to take official action on public business, concerning the same subject matter, within a period of not more than seven days, where the same number of different members attending any of the gatherings at least equals a quorum of the governing body. Ind. Code § 5-14-1.5-3.1.

2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

All official action must be taken in public meetings. See Ind. Code § 5-14-1.5-2(c); § 5-14-1.5-3(a). “Official action” is defined as receiving information, deliberating, making recommendations, establishing policy, making decisions, and/or taking final action. Ind. Code § 5-14-1.5-2(d); see Simon v. City of Auburn v. Bd. of Zoning Appeals, 519 N.E.2d 205, 209 (Ind. Ct. App. 1988) (holding that the Board took “official action” when it received legal advice from its attorney); Turner v. Town of Speedway, 528 N.E.2d 858, 862 (Ind. Ct. App. 1988) (holding that an interview session in which were present was a meeting because they received information). Preliminary considerations may be conducted in private so long as the “final action” takes place at a public meeting. See Baker v. Town of Middlebury, 753 N.E.2d 67, 73 (Ind. App. 2001) (town council’s compiling rehire list in executive session, which effectively removed town marshal from his office, was lawful, where council subsequently voted to approve the list in a regular meeting that was open to the public, because the council’s “final action” consisted of its vote at the public meeting).

b. Deliberation toward decisions

Deliberations are considered official action. Ind. Code § 5-14-1.5-2(d)(2). The statute defines “deliberate” as “a discussion which may reasonably be expected to result in official action.” Ind. Code § 5-14-1.5-2(i); see Turner v. Town of Speedway, 528 N.E.2d 858, 862 (Ind. Ct. App. 1988) (holding that an “breakfast gathering” in which commissioners discussed applicants after an interview session was a meeting because they deliberated).

3. Electronic meetings

a. Conference calls and video/Internet conferencing

The definition of “meeting” as “a gathering of a majority of the governing body of a public agency” is not limited to in-person gatherings. See Ind. Code § 5-14-1.5-2(c). Thus, it is broad enough to encompass conference calls.

In 2012, the Open Door Law was amended to specifically address participation in meetings by electronic means. A member of the governing body of a public agency of a political subdivision who is not physically present at a meeting of the governing body but who communicates with members of the governing body during the meeting by telephone, computer, videoconferencing, or any other electronic means may not participate in final action taken at the meeting unless the member’s participation is expressly authorized by statute; and may not be considered to be present unless the meeting is expressly authorized by statute. Ind. Code § 5-14-1.5-3.5(b).The minutes of the meeting must state whether members participated in person or by using a means of electronic communication. Id. § 5-14-1.5-3.5(c).

For governing bodies of a public agency of the state, Indiana Code Section 5-14-1.5-3.6 governs electronic communication for charter schools and airport authorities. Ind. Code § 5-14-1.5-3.6(a). A member of the governing body of a public agency of the state who is not physically present at a meeting of the governing body may participate via electronic communication only if that means of communication permits all members participating to simultaneously communicate with each other. Id. § 5-14-1.5-3.6(b). There are additional requirements as well. See id. § 5-14-1.5-3.6(c).

b. E-mail

Except in its discussion of serial meetings, Ind. Code § 5-14-1.5-3.1, the Open Door Law does not address e-mail. In its discussion of serial meetings, the Open Door Law specifically exempts e-mail as a “gathering” or “meeting.” Ind. Code § 5-14-1.5-3.1(b).

The Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings and states the following: “[w]hether an email exchange is considered a meeting is largely dependent upon the nature and intent of the communication. If the governing body is trying to communicate simultaneously and expecting an immediate call-and-response type dialogue for the purpose of taking official action on business, the exchange constitutes a meeting.” The Handbook is available at the following link: https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

c. Text messages

The Act does not address text messages. But the Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings, and a similar analysis could apply to text message groups: “[w]hether an email exchange is considered a meeting is largely dependent upon the nature and intent of the communication. If the governing body is trying to communicate simultaneously and expecting an immediate call-and-response type dialogue for the purpose of taking official action on business, the exchange constitutes a meeting.” The Handbook is available at the following link: https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

d. Instant messaging

The Act does not address instant messaging. But the Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings, and a similar analysis could apply to instant messaging groups: “[w]hether an email exchange is considered a meeting is largely dependent upon the nature and intent of the communication. If the governing body is trying to communicate simultaneously and expecting an immediate call-and-response type dialogue for the purpose of taking official action on business, the exchange constitutes a meeting.” The Handbook is available at the following link: https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

e. Social media and online discussion boards

The Act does not address social media and online discussion boards. But the Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings, and a similar analysis could apply social media and online discussion boards: “[w]hether an email exchange is considered a meeting is largely dependent upon the nature and intent of the communication. If the governing body is trying to communicate simultaneously and expecting an immediate call-and-response type dialogue for the purpose of taking official action on business, the exchange constitutes a meeting.” The Handbook is available at the following link: https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

b. Notice

To give effect to the Open Door Law and its purposes, members of the public must have sufficient notice that a meeting is going to take place. With respect to regular meetings, the law provides that notice “need be given only once each year, except that an additional notice shall be given where the date, time, or place of a regular meeting or meetings is changed. This subsection does not apply to executive sessions.” Ind. Code § 5-14-1.5-5(c). The legislature has mandated several specific requirements to ensure that the public is given sufficient notice. Ind. Code § 5-14-1.5-5(a), (b). But see Ripley County Bd. of Zoning Appeals v. Rumpke of Indiana Inc., 663 N.E.2d 19, 205–06 (Ind. App. 1996) (five-minute discussion among board members, without notice, before hearing, did not violate Open Door Law, where discussions were unrelated to the hearing).

For non-emergency meetings, at least 48 hours’ notice (not including Saturdays, Sundays or legal holidays) prior to the meeting is required. Ind. Code § 5-14-1.5-5(a). The time limit does not apply to reconvened meetings, so long as an announcement of the date, time and place of the reconvened meeting is made at the original meeting and recorded in the memoranda and minutes from the meeting, and there is no change in the agenda. Id. The notice must contain the date, time and place of any meeting. Ind. Code § 5-14-1.5-5(a); see Pepinsky v Monroe Cnty. Council, 461 N.E.2d 128 (Ind. 1984) (holding that the notice did not violate the Open Door Law when it failed to specify the room number in which the meeting would be held). The subject matter of the meeting need not be included in notice of a regular meeting). Id.

Notice also must be delivered to all news media which provide the governing body of the public agency with an annual written request for such notices. Ind. Code § 5-14-1.5-5(b)(2). The news media must expressly request to receive notice of all meetings for the calendar year by submitting a written request to the public agency by Jan. 1 of each year. Id. The governing body may provide notice to the news media by any one of the following methods: mailing notice by U.S. mail with postage prepaid, transmitting notice by e-mail, or sending notice by facsimile (fax). Id A state agency must provide electronic access to the notice through the computer gateway administered by the office of technology established by Ind. Code § 4-13.1-2-1. Ind. Code § 5-14-1.5-5(b)(3).

If the governing body uses an agenda, the agenda must also be posted at the entrance to the meeting location before the meeting. Ind. Code § 5-14-1.5-4(a). The Open Door Law does not specify what agenda items are required, however. Yet, the statute specifically provides that “a rule, regulation, ordinance, or other final action adopted by reference to agenda item alone is void.” Id.

Any action taken at a meeting for which inadequate notice was given can be voided by filing an action in any court of competent jurisdiction. Ind. Code § 5-14-1.5-7(a). Voiding agency action is not automatic, however; courts consider a laundry list of factors, set forth in Ind. Code § 5-14-1.5-7(d), when deciding whether invalidation is an appropriate remedy. The Indiana Court of Appeals has held that whether to void any final action taken by a public agency in violation of the Open Door Law is a matter left to the trial court’s discretion. Town of Merrillville v. Blanco, 687 N.E.2d 191, 199 (Ind. App. 1997); see Warren v. Bd. of Sch. Trs. of Springs Valley Cmty. Corp., 49 N.E.3d 559, 567–68 (Ind. Ct. App. 2015) (voiding the action taken when the board meeting was held at 2:30 A.M. instead of 7:00 P.M.); see also Frye v. Vigo County, 769 N.E.2d 188, 197 (Ind. App. 2002) (remanding case to the trial court for further consideration of the statutory factors to decide whether voiding the agency’s action would be a proper remedy); Turner v. Town of Speedway, 528 N.E.2d 858, 863 (Ind. App. 1988) (interview sessions conducted by police commissioners at a local restaurant, without proper notice, violated the Open Door Act; however, the subsequent final action by the commission could not be voided, as the violations predated non-retroactive amendment providing such a remedy). The violating agency may also cure the violation. See Ind. Code § 5-14-1.5-7(c); Guzik v. Town of St. John, 875 N.E.2d 258, 272 (Ind. Ct. App. 2007). Injunctive or declaratory relief also are possible remedies for violations of the Open Door Law. Ind. Code § 5-14-1.5-7(a)(1),(2).

c. Minutes

2. Special or emergency meetings

The following must be contained in memoranda of a public meeting: the date, time and place of the meeting; the members of the governing body either present or absent; the general substance of all matters proposed, discussed or decided; a record of all votes taken, and by individual members if there is a roll call. Ind. Code § 5-14-1.5-4(b).

Minutes are public record. The Open Door Law specifically provides that the memoranda are to be available within a reasonable period of time and the minutes, if any, are to be open for public inspection and copying. “Reasonable period of time” is not defined by the Act. Ind. Code § 5-14-1.5-4(c).

Public agencies may assume a duty to amend their minutes when they acknowledge technical errors. See State ex rel. Wineholt v. LaPorte Superior Ct. No. 2, 230 N.E.2d 92, 94–95 (Ind. 1967). Agencies have a right to amend their minutes so long as no intervening vested rights are involved. Id. at 96.

a. Definition

Special or emergency meetings are not defined. However, if a meeting is called to deal with an emergency involving actual or threatened injury to person or property, or actual or threatened disruption of the governmental activity of the jurisdiction of the public agency, the time limits for notice are altered. Ind. Code § 5-14-1.5-5(d).

b. Notice requirements

The notice requirements for non-emergency meetings, which require at least 48-hour advance notice, are suspended for emergency meetings. Ind. Code § 5-14-1.5-5(d). However, news media that has requested notice of meetings must be given the same notice as is given to members of the governing body and the public must be notified by posting a copy of the notice required by the statute. Ind. Code § 5-14-1.5-5(d)(1), (2). The notice requirements are otherwise the same as for regular meetings. Ind. Code § 5-14-1.5-5(a). Likewise, the general rules requiring agenda items apply to emergency or special meetings, Ind. Code § 5-14-1.5-4(a), as are the penalties are for failing to provide adequate notice of regular meetings, Ind. Code § 5-14-1.5-7.

c. Minutes

The same material required for minutes of regular meetings is required for minutes of special or emergency meetings: the date, time and place of the meeting; the members of the governing body present or absent; the general substance of all matters proposed, discussed or decided; and a record of all votes taken, by individual members if there is a roll call. Ind. Code § 5-14-1.5-4(b).

Minutes for emergency or special meeting minutes are of public record, as are regular meeting minutes. The statute specifically provides that the memoranda are to be available within a reasonable period of time and the minutes, if any, are to be open for public inspection and copying. “Reasonable period of time” is not defined by the Act. Ind. Code § 5-14-1.5-4(c).

Public agencies may assume a duty to amend their minutes when they acknowledge technical errors. See State ex rel. Wineholt v. LaPorte Superior Ct. No. 2, 230 N.E.2d 92, 94–95 (Ind. 1967). Agencies have a right to amend their minutes so long as no intervening vested rights are involved. Id. at 96.

3. Closed meetings or executive sessions

a. Definition

An “executive session” is a meeting from which the public is excluded, except the governing body may admit those persons necessary to carry out its purpose. Ind. Code § 5-14-1.5-2(f); see also Ind. Code § 5-14-1.5-6.1 (providing statutory limitations on executive sessions); Guzik v. Town of St. John, 875 N.E.2d 258 (Ind. Ct. App. 2007) (holding that executive sessions are appropriate for discussing an individual employee’s job performance evaluation).

The Indiana Court of Appeals recently held that a school board’s deliberations in an executive session were not discoverable because compelling discovery would intrude upon the functions of the other branches of government. see Warren v. Bd. of Sch. Trs. of Springs Valley Cmty. Corp., 49 N.E.3d 559, 570 (Ind. Ct. App. 2015).

b. Notice requirements

The notice requirements for executive sessions are the same as for regular sessions, Ind. Code § 5-14-1.5-5, except the notice for an executive session must also state the subject matter of the meeting by specific reference to the statutory exemptions for which executive sessions may be held. Ind. Code § 5-14-1.5-6.1(d); see also Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 468 (Ind. App. 2002) (board violated the Open Door Law because notice of executive session failed to state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held under Ind. Code § 5-14-1.5-6.1(b)); Frye v. Vigo Cnty., 789 N.E.2d 188, 194 (Ind. Ct. App. 2002) (holding that the executive session notice did not meet the special requirements). At least 48-hour notice (not including Saturdays, Sundays, or legal holidays) before the meeting is required. Ind. Code § 5-14-1.5-5(a).

Notice must be given to the public and to all news media which annually request it. The news media must expressly request to receive notice of all meetings for the calendar year by submitting a written request to the public agency by Jan. 1 of each year. Ind. Code § 5-14-1.5-5(b). A state agency must provide electronic access to the notice through the computer gateway administered by the office of technology under Ind. Code § 4-13.1-2-1. Ind. Code § 5-14-1.5-5(b).

The notice must be posted at the principal office of the public agency holding the meeting or, if no such office exists, at the building where the meeting is to be held; and by mailing (with postage prepaid), e-mailing or faxing notice to all news media which provide the governing body of the public agency with an annual written request for such notices. Ind. Code § 5-14-1.5-5.

If the governing body uses an agenda, the agenda must be posted at the entrance to the location of the meeting prior to the meeting. Ind. Code § 5-14-1.5-4(a). The Open Door Law does not specify what agenda items are required, however. Yet, the statute specifically provides that “a rule, regulation, ordinance, or other final action adopted by reference to agenda item alone is void.” Id.

Failure to give proper notice of an executive session violates the Open Door Law. See Town of Merrillville v. Blanco, 687 N.E.2d 191, 201 (Ind. App. 1997) (executive session violated the Open Door Law, where board of metropolitan police commissioners’ notice of hearing failed to inform the public that an executive session would be held). There are penalties for failing to provide adequate notice of regular meetings, Ind. Code § 5-14-1.5-7, but a violation may not result in a reversal of the action taken at the executive session. See Thornberry v. City of Hobart, 887 N.E.2d 110, 117–18 (Ind. Ct. App. 2008). Further, injunctions may be granted for threatened violations of the Open Door Law. See Common Council of City of Peru v. Peru Daily Tribune, 440 N.E.2d 726, 733 (Ind. Ct. App. 1982) (holding that proposed executive sessions threatened violation of the Open Door Law).

c. Minutes

The minutes must identify the subject matter considered by specific reference to the enumerated instance for which public notice was given. Ind. Code § 5-14-1.5-6.1(d). The governing body must certify by a statement in its memoranda and minutes that it discussed nothing in the executive session other than the subject matter specified in the public notice. Id.

The meeting minutes of executive sessions are of public record. The Open Door Law specifically provides that the memoranda are to be available within a reasonable period of time and the minutes, if any, are to be open for public inspection and copying. “Reasonable period of time” is not defined by the Act. Ind. Code § 5-14-1.5-4(c).

d. Requirement to meet in public before closing meeting

The law contains no such requirement. In fact, the law specifically provides that a governing body may not conduct an executive session during a meeting, and a meeting may not be recessed and reconvened with the intent of circumventing this section of the statute. Ind. Code § 5-14-1.5-6.1(e). See also Frye v. Vigo Cnty., 789 N.E.2d 188, 192 (Ind. Ct. App. 2002) (stating that the only official action that may not take place in an executive session is a final action).

f. Tape recording requirements

F. Recording/broadcast of meetings

1. Sound recordings allowed

The statute permits the public to “observe, and record” public meetings. Ind. Code § 5-14-1.5-2(a). “Record” is not defined in the Open Door Law, but the Indiana Supreme Court has approved of the definition of “record” as “the reasonable use of recorders, cameras and any other recognized means of recording.” Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 234 (Ind. 1989). The Indiana Supreme Court has held that recordings may be permissible. Id.

Another statute, Ind. Code Section 4-22-3-2, authorizes live or recorded broadcasts of state administrative agency proceedings. “Record” is not defined or limited to audio. See also Att’y Gen. Op. 84-9 (1984) (“A citizen has the right to be present at a public meeting, other than an executive session, and to record the meeting by videotaping, taping, shorthand, or any other recognized method of recording subject to reasonable restrictions as to equipment and use which may be imposed by the public agency.”). It is customary to allow sound recording of meetings.

2. Photographic recordings allowed

The same principles applicable to sound recordings apply to photographic recording of public meetings. In practice, still cameras and video recording are commonplace. See Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 234 (Ind. 1989) (approving of the following definition of “record”: “the reasonable use of recorders, cameras and any other recognized means of recording”).

G. Access to meeting materials, reports and agendas

The Access to Public Records Act governs public access to public agency records. Ind. Code § 5-14-3-3(a). The general rule is that all public agency records are open to the public for inspection and copying, id., but the act lists several mandatory and discretionary exemptions. See id. § 5-14-3-4(a), (b).

H. Are there sanctions for noncompliance?

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

Executive sessions may be closed, and the circumstances in which an executive session can be held are explicitly stated in the statute. Ind. Code § 5-14-1.5-6.1. Closure is discretionary, although typically public agencies exercise their discretion in favor of closure. Ind. Code § 5-14-1.5-6.1(b) (“[e]xecutive sessions may be held . . .”) (emphasis added).

Note also that Indiana Code Section 5-14-1.5-2.1 construes providers of goods and services as not public agencies subject to the Open Door Law if they meet the following criteria: (1) the provider receives public funds through an agreement with the public entity, in exchange for services, goods, or other benefits; (2) the amount of fees received does not involve a consideration of tax revenues of the public entity; (3) the public entity negotiates the fee; (4) the public entity is billed for services or goods actually provided; and (5) the provider is not required to be audited by the state board of accounts. Ind. Code § 5-14-1.5-2.1.

2. Description of each exemption

Under Ind. Code § 5-14-1.5-6.1(b)(1)–(15), executive sessions are permitted only in the following instances:

(1) Where authorized by federal or state statute.

(2) For discussion of strategy for collective bargaining, initiation of litigation or litigation which is either pending or has been threatened specifically in writing; the implementation of security systems; or the purchase or lease of real property up to the time a contract or option to purchase or lease is executed by the parties. However, all strategy discussions must be necessary for competitive or bargaining reasons and must not include adversaries.

(3) For discussion of the assessment, design and implementation of school security systems.

(4) Interviews with industrial or commercial prospects or agents of industrial or commercial prospects by the department of commerce, the Indiana development finance authority, the film commission, the Indiana business modernization and technology corporation, or economic development commissions.

(5) To receive information about, and interview, prospective employees. See Common Council of City of Peru v. Peru Daily Tribune, 440 N.E.2d 726, 733 (Ind. Ct. App. 1982) (holding that proposed executive sessions threatened violation of the Open Door Law).

(6) With respect to any individual over whom the governing body has jurisdiction, to receive information concerning the individual’s alleged misconduct; and to discuss, before a determination, the individual’s status as an employee, a student or an independent contractor who is a physician or a school bus driver. (Ind. Code § 5-14-1.5-6.1(b)(6)). However, an executive session may not be used to receive evidence. See Town of Merrillville v. Peters, 655 N.E.2d 341, 343 (Ind. App. 1995) (holding that a closed police disciplinary hearing was a valid executive session and that the closed hearing did not violate due process); Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 233–34 (Ind. 1989) (holding that the local sheriff’s merit board law prevailed over the Open Door Law’s executive session provisions).

(7) For discussion of records classified as confidential by state or federal statute.

(8) To discuss before a placement decision an individual student’s abilities, past performance, behavior and needs.

(9) To discuss a job performance evaluation of individual employees. (This does not apply to discussions of the salary, compensation or benefits of employees during a budget process.) See Guzik v. Town of St. John, 875 N.E.2d 258 (Ind. Ct. App. 2007) (holding that executive sessions are appropriate for discussing an individual employee’s job performance evaluation).

(10) When considering the appointment of a public official, to develop a list of prospective appointees, consider applications, and make one initial exclusion of prospective appointees from further consideration. However, interviews of prospective appointees must be conducted at a public meeting.

(11) To train school board members with an outside consultant on how to perform as public officials.

(13) To discuss information and intelligence intended to prevent, mitigate, or respond to the threat of terrorism.

(14) To train members of a board of aviation commissioners appointed under IC 8-22-2 or members of an airport authority board appointed under IC 8-22-3 with an outside consultant about the performance of the role of the members as public officials. A board may hold not more than one (1) executive session per calendar year under this subdivision.

(15) For discussion by the governing body of a state educational institution of: (A) the assessment of; or (B) negotiation with another entity concerning the establishment of a collaborative relationship or venture to advance the research, engagement, or education mission of the state educational institution. However, this subdivision does not apply to any discussions regarding research that is prohibited under IC 16-34.5-1-2 or under any other law.

C. Court mandated opening, closing

There are no reported cases in which a court has added categories for executive sessions or invalidated the categories set by the legislature. In terms of interpreting the categories of exceptions, Indiana courts have recognized that effectuating the legislative intent behind the Open Door Law requires that “all doubts must be resolved in favor of requiring a public meeting and all exceptions to the rule requiring open meetings must be narrowly construed.” Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 468 (Ind. App. 2002).

III. Meeting categories - open or closed

A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

Deliberations are considered “official action.” Ind. Code § 5-14-1.5-2(d)(2). However, deliberations may occur in an executive session, which is closed to the public. See Marion County Sheriff’s Merit Board v. People’s Broad., 547 N.E.2d 235 (Ind. 1989) (Merit Board could discuss evidence in executive session after taking evidence in public hearing as long as final action on disciplinary case was taken in public).

B. Budget sessions

C. Business and industry relations

Unless the meeting involves interviews with industrial or commercial prospects or their agents by the department of commerce, the Indiana development finance authority, the film commission, the Indiana business modernization and technology corporation, or economic development commissions, business and industry sessions must be open to the public. Ind. Code § 5-14-1.5-6.1(b)(4).

D. Federal programs

There is no provision for closing meetings to discuss federal programs, unless authorized by a federal statute or other state statute, see Ind. Code § 5-14-1.5-1; § 5-14-1.5-6.1(b)(7), or unless it fits in the general categories for executive sessions in Ind. Code § 5-14-1.5-6.1(b).

E. Financial data of public bodies

Unless authorized by a federal statute or other state statute, see Ind. Code § 5-14-1.5-1; § 5-14-1.5-6.1(b)(7), or unless the meeting fits into the general categories of executive sessions in Ind. Code § 5-14-1.5-6.1(b), meetings regarding financial data of public bodies must be open to the public.

The Open Door Law permits executive sessions for discussion of records classified as confidential by state or federal statute. Ind. Code § 5-14-1.5-6.1(b)(7). To the extent that these are classified as confidential records under the Access to Public Records Act, an executive session could be held to review this data. Id.

G. Gifts, trusts and honorary degrees

Unless authorized by a federal statute or other state statute, see Ind. Code § 5-14-1.5-1; § 5-14-1.5-6.1(b)(7), or unless the meeting fits into the general categories of executive sessions in Ind. Code § 5-14-1.5-6.1(b), meetings regarding gifts, trusts, and honorary degrees must be open to the public. Note that the identity of a donor in a record may be exempt from the Access to Public Records Act. Ind. Code § 5-14-1.5-1(b)(15).

H. Grand jury testimony by public employees

The statute does not apply to courts. Ind. Code § 5-14-1.5-2(a) (defining a “public agency” subject to the act as an entity that “exercises a portion of the executive, administrative, or legislative power of the state” — but not judicial power). Grand jury proceedings are confidential under Ind. Code § 35-34-2-10. However, if a governing body met to discuss grand jury testimony that had already been given, the meeting would have to be open unless it could be classified under the general executive session categories in Ind. Code § 5-14-1.5-6.1(b).

I. Licensing examinations

Executive sessions, which are closed, may be held “[t]o prepare or score examinations used in issuing licenses, certificates, permits, or registrations.” Ind. Code § 5-14-1.5-6.1(b)(12). Furthermore, if the meeting is to discuss particular questions to be included in tests or to discuss results identifiable to a particular person, this meeting could be closed under the exemption for discussion of records classified as confidential by state or federal statute. See Ind. Code § 5-14-1.5-6.1(b)(7). Such records would be confidential under the Indiana Access to Public Records Act. Ind. Code §§ 5-14-3-4(a)(7), (b)(3)–(4).

J. Litigation, pending litigation or other attorney-client privileges

The public agency may hold an executive session to discuss strategy for initiation of litigation or litigation which is either pending or has been threatened specifically in writing. Ind. Code § 5-14-1.5-6.1(b)(2). If an adversary is present, the meeting cannot be closed. Id. § 5-14-1.5-6.1(b).The Open Door Law precludes a public agency from going into executive session to receive legal advice from its attorneys before a public meeting when the legal advice relates to the subject of the meeting. Simon v. City of Auburn, 519 N.E.2d 205, 209 (Ind. App. 1988); see also Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 549 (Ind. App 2003) (city board violated Indiana Open Door Law when it conferred with its attorney off the record in the course of administrative disciplinary hearings).

Under the Indiana Access to Public Records Act, the work product of an attorney who represents a public agency, the state, or an individual pursuant to state employment or appointment by a public agency may be declared confidential at the agency’s discretion. Ind. Code § 5-14-3-4(b)(2); see also Groth v. Pence, 67 N.E.3d 1104, 1123 (Ind. Ct. App. 2017) (holding that the governor acted in his discretion by not disclosing of white papers as attorney work product). If such records were classified as confidential, then meetings discussing them would qualify as executive sessions under Ind. Code § 5-14-1.5-6.1(b)(7).

Note that the Indiana Supreme Court has limited its interpretative authority under Indiana Code Section 5-14-3-4(b)(2). Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236, 242 (Ind. 2016). The Court held that the issue of whether the documents the plaintiffs sought were “legislative work product” was a non-justiciable question. Id.

K. Negotiations and collective bargaining of public employees

1. Any sessions regarding collective bargaining

Only sessions in which strategy regarding collective bargaining is discussed may be closed. Ind. Code § 5-14-1.5-6.1(b)(2). But if the adversary is present, an executive session cannot be held. Id. § 5-14-1.5-6.1(b). Accordingly, negotiations attended by a majority of the governing body of the public agency must be conducted in public. See id. Indiana Code Section 5-14-1.5-6.5 provides supplemental provisions regarding meetings between a governing body (or an authorized representative) and an employee organization (or an authorized representative).

2. Only those between the public employees and the public body

Only sessions in which strategy regarding collective bargaining is discussed may be closed. Ind. Code § 5-14-1.5-6.1(b)(2). But if the adversary is present, an executive session cannot be held. Id. § 5-14-1.5-6.1(b). Accordingly, negotiations attended by a majority of the governing body of the public agency must be conducted in public. See id. Indiana Code Section 5-14-1.5-6.5 provides supplemental provisions regarding meetings between a governing body (or an authorized representative) and an employee organization (or an authorized representative).

N. Personnel matters

1. Interviews for public employment

Interviews of public employees may be conducted in executive session. Ind. Code § 5-14-1.5-6.1(b)(5). However, interviews of prospective appointees for positions as public officials must be conducted in public, though preliminary considerations can be closed. Ind. Code § 5-14-1.5-6.1(b)(10). See Common Council of City of Peru v. Peru Daily Tribune, 440 N.E.2d 726, 733 (Ind. Ct. App. 1982) (holding that proposed executive sessions threatened violation of the Open Door Law and distinguishing between public employees and public officials).

2. Disciplinary matters, performance or ethics of public employees

An executive session is permitted for the governing body of a public agency to receive information about a public employee’s alleged misconduct and to discuss, prior to any determination, that person’s status as an employee for certain professions. Ind. Code § 5-14-1.5-6.1(b)(6). See Town of Merrillville v. Peters, 655 N.E.2d 341, 343 (Ind. App. 1995) (holding that a closed police disciplinary hearing was a valid executive session and that the closed hearing did not violate due process); Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 233–34 (Ind. 1989) (holding that the local sheriff’s merit board law prevailed over the Open Door Law’s executive session provisions).

3. Dismissal, considering dismissal of public employees

An executive session is permitted for discussion of the discipline of public employees. Ind. Code § 5-14-1.5-6.1(b)(6). See Town of Merrillville v. Peters, 655 N.E.2d 341, 343 (Ind. App. 1995) (holding that a closed police disciplinary hearing was a valid executive session and that the closed hearing did not violate due process); Berry v. Peoples Broad. Corp., 547 N.E.2d 231, 233–34 (Ind. 1989) (holding that the local sheriff’s merit board law prevailed over the Open Door Law’s executive session provisions).

The statute also authorizes executive sessions for discussing an individual employee’s job performance evaluation. Ind. Code § 5-14-1.5-6.1(b)(9); see also Guzik v. Town of St. John, 875 N.E.2d 258 (Ind. Ct. App. 2007) (holding that executive sessions are appropriate for discussing an individual employee’s job performance evaluation). However, this exemption does not apply to discussions of the salary, compensation or benefits of employees during a budget process. Ind. Code § 5-14-1.5-6.1(b)(9).

O. Real estate negotiations

Executive sessions are permitted for strategy discussions about with respect to the purchase or lease of real property up to the time a contract or option to purchase or lease is executed by the parties. Ind. Code § 5-14-1.5-6.1(b)(2)(D). An executive session is not permitted if competitive or bargaining adversaries are included in the meeting. Ind. Code § 5-14-1.5-6.1(b).

P. Security, national and/or state, of buildings, personnel or other

Executive sessions are permitted for strategy discussions about the implementation of security systems. Ind. Code § 5-14-1.5-6.1(b)(2)(C). To the extent that the meeting would focus on records declared confidential by state statute or by federal statute, an executive session could be held. Ind. Code § 5-14-1.5-6.1(b)(1), (b)(7); see Ind. Code § 5-14-3-4(b)(10), (18), (19), (23) (exemptions to Access to Public Records Act relating to security).

Q. Students, discussions on individual students

Executive sessions are permitted to discuss, before a determination, an individual’s status as a student, and to discuss before any placement decision a student’s abilities, past performance, behavior and needs. Ind. Code §§ 5-14-1.5-6.1(b)(6)(B), (b)(8).

2. When barred from attending

Anyone may file an action for declaratory or injunctive relief to ensure compliance with the statute. Ind. Code § 5-14-1.5-7(a), and “[t]he plaintiff need not allege or prove special damage different from that suffered by the public at large.” Id.

3. To set aside decision

The statute authorizes any aggrieved person to file an action to void any policy, decision or final action taken at a meeting which violates the Open Door Law. Ind. Code § 5-14-1.5-6.1(a)(3); see also Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006) (granting declaratory judgment to prevent violation of Open Door Law where complaint requested voiding adoption of budget cuts); see also Frye v. Vigo County, 769 N.E.2d 188, 197 (Ind. App. 2002) (remanding case to the trial court for further consideration of the statutory factors to decide whether voiding the agency’s action would be a proper remedy). But see Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 549 (Ind. App 2003) (declining to declare action taken void despite Open Door Law violation).

Regardless whether a formal complaint or informal inquiry is pending before the Public Access Counselor, any lawsuit must be filed before the delivery of warrants, notes, bonds or obligations if the relief sought would have the effect of invalidating the notes, bonds or obligations; or within 30 days of the act or failure to act or the date that the plaintiff knew or should have known that the act or failure to act had occurred (whichever is later). Ind. Code § 5-14-1.5-7(b); see City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1010–11 (Ind. Ct. App. 2011) (holding that the management corporation waived its Open Door Law complaints by failing to file its complaint within the thirty day timeframe). If the challenged action is recorded in the memoranda or minutes of a governing body, a plaintiff is deemed to know of such act, at a minimum, as of that date. Id.

5. Other

B. How to start

1. Where to ask for ruling

a. Administrative forum

No administrative agency handles Open Door Law complaints, and the statute provides only for judicial remedies. See Miller v. Gibson County Solid Waste Mgmt. Distrib., 622 N.E.2d 248 (Ind. Tax 1993) (“[N]owhere within the Open Door Law is there provision for any administrative review . . . . [The statute] plainly allows only courts to provide relief for Open Door Law violations.”). However, the proponent of access will generally complain first to the president or chairman of the governing body or to the governing body’s counsel. See also Petit v. Indiana Alcoholic Beverage Comm’n, 511 N.E.2d 312, 316 (Ind. App. 1987) (The word “action” as used in Indiana Code Section 5-14-1.5-7 contemplates the filing of a lawsuit; objections to the failure to comply with the Open Door Law, standing alone, does not stop the thirty day timeframe for filing a complaint).

The Office of the Public Access Counselor responds to inquiries from the public and public agencies on public access issues. Ind. Code § 5-14-4-10. An individual or a public agency may file a formal complaint or make an informal inquiry with the Counselor. Ind. Code § 5-14-5-6. Formal complaints must be filed within 30 days of the denial of access to a meeting. Ind. Code § 5-14-5-7(a). A complaint is considered filed on the date that it is either received by the Public Access Counselor or the date that it is postmarked, so long as it is received no more than 30 days after the date of the denial at issue. Ind. Code § 5-14-5-7(b).

Once the Public Access Counselor receives the complaint, a copy must be forwarded immediately to the public agency that is the subject of the complaint. Ind. Code § 5-14-5-8. The Public Access Counselor may conduct an investigation, and the public agency is required to cooperate in any investigation. Ind. Code § 5-14-5-5. The Public Access Counselor is required to issue an advisory opinion not later than 30 days after the complaint is filed. Ind. Code § 5-14-5-9. If the Public Access Counselor determines that a complaint has priority, an advisory opinion must be issued within seven days. Ind. Code § 5-14-5-10. The statute of limitations for filing a lawsuit is not tolled by filing a formal complaint with the Public Access Counselor. Ind. Code § 5-14-5-12.

b. State attorney general

There is no specific review by the state attorney general. However, at the state level, most state agencies have a specific deputy attorney general assigned to them, and he/she may facilitate a solution.

c. Court

The statute permits lawsuits to be filed in any court of competent jurisdiction in the state. Ind. Code § 15-14-1.5-7(a). There are no administrative remedies to be exhausted. Indeed, the statute explicitly provides that a person or public agency is not required to file a complaint with the Public Access Counselor before seeking judicial remedy. Ind. Code § 5-14-5-4. However, it is advisable to make either a formal complaint or informal inquiry with the counselor, as failure to do so bars collection of attorney fees, with narrow exceptions. Ind. Code § 5-14-1.5-7(f); see Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 471–72 (Ind. App. 2002) (upholding grant of attorney fees after filing of formal complaint to the Public Access Counselor); Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 548–49 (Ind. App. 2003) (because appellant’s suit against the government was necessary to prevent current and further violations of the Indiana Open Door Law, award of attorney fees to appellant under IC 5-14-1.5-7(f) was proper, despite appellant’s failure to obtain an advisory opinion from the public access counselor prior to filing for relief).

2. Applicable time limits

Any lawsuit must be filed before delivery of warrants, notes, bonds or obligations if the relief sought would have the effect of invalidating the notes, bonds or obligations; or within 30 days the act or failure to act or the date that the plaintiff knew or should have known that the act or failure to act had occurred (whichever is later). Ind. Code § 5-14-1.5-7(b); see also see City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1010–11 (Ind. Ct. App. 2011) (holding that the management corporation waived its Open Door Law complaints by failing to file its complaint within the thirty day timeframe); Petit v. Indiana Alcoholic Beverage Comm’n, 511 N.E.2d 312, 316 (Ind. App. 1987) (The word “action” as used in Indiana Code Section 5-14-1.5-7 contemplates the filing of a lawsuit; objections to the failure to comply with the Open Door Law, standing alone, does not stop the thirty day timeframe for filing a complaint). If the challenged action is recorded in the memoranda or minutes of a governing body, a plaintiff is deemed to know of such act, at a minimum, as of that date. Id.

3. Contents of request for ruling

Basic rules of notice pleading apply. See Ind. R. Tr. P. 8. At a minimum, the plaintiff should identify what constitutes the violation, when it occurred, and the relief sought. The plaintiff need not allege or prove special damage different from that suffered by the public at large. Ind. Code § 5-14-1.5-7(a).

4. How long should you wait for a response

The only way to get a binding ruling is to file a lawsuit. The lawsuit must be tried, settled or adjudicated. See Azhar v. Town of Fishers, 744 N.E.2d 947, 953 (Ind. Ct. App. 2001) (genuine issues of material fact precluded summary judgment).

However, if the complainant files a complaint with the Public Access Counselor, the Counselor is required to issue an advisory opinion not later than 30 days after the complaint is filed. Ind. Code § 5-14-5-9.

5. Are subsequent or concurrent measures (formal or informal) available?

C. Court review of administrative decision

1. Who may sue?

Anyone may file an action for declaratory or injunctive relief to ensure compliance with the statute. Ind. Code § 5-14-1.5-7(a), and “[t]he plaintiff need not allege or prove special damage different from that suffered by the public at large.” Id.

The Indiana Court of Appeals previously held that a county board lacks standing to sue because it is not an Indiana “citizen.” Board of Comm’rs. v. Jones, 457 N.E.2d 580, 590 (Ind. App. 1983). However, the same result may not occur today, as Indiana Code Section 5-14-1.5-7(a) has since been amended to allow “any person” to file an action, and “person” is defined as “an individual, a corporation, a limited liability company, a partnership, an unincorporated association, or a governmental entity.” Ind. Code § 5-14-1.5-2(k) (emphasis added).

2. Will the court give priority to the pleading?

Yes. Ind. Code § 5-14-1.5-7(h) provides that a court shall expedite the hearing of an action filed under this section. Additionally, actions for injunctive relief typically have priority on a court’s docket.

3. Pro se possibility, advisability

An individual (but not a corporation) may appear pro se, but pro se litigants are held to the same standard as parties represented by counsel. Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind. App. 1995). Therefore, it is not advisable to proceed pro se unless the individual has an intimate knowledge of legal procedures and analysis. Note that a pro se attorney cannot receive attorney’s fees under the Access to Public Records Act, and the same result could occur under the Open Door Law. SeeMarion Cnty. Election Bd. v. Bowes, 53 N.E.3d 1203, 1209 (Ind. Ct. App. 2016).

b. Invalidate the decision

Voiding a decision taken at a meeting that violates the statute is an available remedy. Ind. Code § 5-14-1.5-7(a)(3). In determining whether to declare any policy, decision, or final action void, the court must consider, among other relevant issues, the factors enumerated in Ind. Code § 5-14-1.5-7(d). The decision whether to void any final action taken in violation of the Open Door Law is a matter left to the trial court’s discretion. Thornberry v. City of Hobart, 887 N.E.2d 110 (Ind. Ct. App. 2008). See also Marion-Adams Sch. Corp. v. Boone, 840 N.E.2d 462, 468 (Ind. Ct. App. 2006) (granting declaratory judgment to prevent violation of Open Door Law where complaint requested voiding adoption of budget cuts); see also Frye v. Vigo County, 769 N.E.2d 188, 197 (Ind. App. 2002) (remanding case to the trial court for further consideration of the statutory factors to decide whether voiding the agency’s action would be a proper remedy). But see Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 549 (Ind. App 2003) (declining to declare action taken void despite Open Door Law violation).

5. Pleading format

There is no specific pleading format other than that required for lawsuits generally. Pleading forms are governed by Rule 10 of the Indiana Rules of Trial Procedure. Pleading captions must include the names of the parties, the title of the action, the court and cause number. Ind. R. Tr. P. 10. The pleadings must be signed, and copies served on all other parties or their counsel. Ind. R. Tr. P. 11, 4.

6. Time limit for filing suit

Any lawsuit must be filed before the delivery of warrants, notes, bonds or obligations if the relief sought would have the effect of invalidating the notes, bonds or obligations; or within 30 days of the act or failure to act or the date that the plaintiff knew or should have known that the act or failure to act had occurred (whichever is later). Ind. Code § 5-14-1.5-7(b); see also see City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1010–11 (Ind. Ct. App. 2011) (holding that the management corporation waived its Open Door Law complaints by failing to file its complaint within the thirty day timeframe); Petit v. Indiana Alcoholic Beverage Comm’n, 511 N.E.2d 312, 316 (Ind. App. 1987) (The word “action” as used in Indiana Code Section 5-14-1.5-7 contemplates the filing of a lawsuit; objections to the failure to comply with the Open Door Law, standing alone, does not stop the thirty day timeframe for filing a complaint). If the challenged action is recorded in the memoranda or minutes of a governing body, a plaintiff is deemed to know of such act, at a minimum, as of that date. Id.

7. What court?

8. Judicial remedies available

The court may open the meeting, invalidate the decision, or order that future meetings be conducted in public. Ind. Code § 5-14-1.5-7. If a decision is voided, the court may enjoin the governing body from acting on the subject matter of the voided act until it has been substantially reconsidered at a meeting or meetings that comply with the Open Door Law. Ind. Code § 5-14-1.5-7(e). Indiana courts have held that substantial compliance with the Open Door Law may in some circumstances be sufficient remedy for previous violations. Riggin v. Bd. of Trs. of Ball State Univ., 489 N.E.2d 616, 623–24 (Ind. Ct. App. 1986) (holding that Ball State substantially complied with the Open Door Law); see also Azhar v. Town of Fishers, 744 N.E.2d 947, 953 (Ind. App. 2001) (holding that there were genuine issues of fact as to whether the agency cured its Open Door Law violations).

9. Availability of court costs and attorney's fees

The court shall award reasonable attorneys’ fees, court costs and other reasonable expenses of litigation, to a prevailing plaintiff. Ind. Code § 5-14-1.5-7(f); see, e.g., Ross v. Bartholomew Cnty. Drainage Bd., 995 N.E.2d 1051, 1057 (Ind. Ct. App. 2013) (upholding award of attorney’s fees). But see City of Jeffersonville v. Envtl. Mgmt. Corp., 954 N.E.2d 1000, 1012 (Ind. Ct. App. 2011) (holding that the trial court abused its discretion in calculating the environmental corporation’s attorney’s fees and costs for litigation expenses). However, a prevailing plaintiff may not recover fees if the plaintiff filed suit without seeking and obtaining an informal inquiry response from the Public Access Counselor, unless the lawsuit was necessary to prevent violation of the Open Door Law. Ind. Code § 5-14-1.5-7(f); see, e.g., Gary/Chicago Airport Bd. of Auth. v. Maclin, 772 N.E.2d 463, 471–72 (Ind. App. 2002) (upholding grant of attorney fees after filing of formal complaint to the Public Access Counselor); Hinojosa v. Hammond Bd. of Pub. Works & Safety, 789 N.E.2d 533, 548-49 (Ind. App. 2003) (because appellant’s suit against the government was necessary to prevent current and further violations of the Indiana Open Door Law, award of attorney fees to appellant under IC 5-14-1.5-7(f) was proper, despite appellant’s failure to obtain an advisory opinion from the public access counselor prior to filing for relief). An award of attorneys’ fees and litigation expenses is discretionary to a prevailing defendant, if the court finds that the action is frivolous and vexatious. Id. As a matter of course, costs are awarded to the prevailing party. Ind. Trial Rule 54(D).

11. Other penalties

D. Appealing initial court decisions

1. Appeal routes

An adverse decision is appealed to the Indiana Court of Appeals, see Indiana Appellate Rule 5, although a party can seek to go directly to the Supreme Court under Rule 56 of the Rules of Appellate Procedure in rare cases.

2. Time limits for filing appeals

A notice of appeal must be filed with the trial court clerk within 30 days after the entry of a final judgment or within 30 days after the notation of an interlocutory order. Ind. R. App. P. 9(A)(1); 14. The notice of appeal has replaced the praecipe for appeal. App. R. 2(I); 9(A)(4). Failure to file the notice of appeal means that the appellate court does not have jurisdiction, Neu v. Gibson, 968 N.E.2d 262, 269 (Ind. Ct. App. 2012), and will forfeit the right to appeal, App. R. 9(A)(5).

Within 30 days of a party filing of a notice of appeal, the trial court clerk must assemble the Clerk’s Record, which consists of the chronological case summary and all papers, pleadings, documents, orders, judgments and other materials filed in the trial court. App. R. 2(E), 10(B). Within 45 days of the appellant filing the Notice of Appeal, the court reporter must file the Transcript with the trial court clerk. App. R. 11(B). Briefing deadlines are tied to the date the record is filed. App. R. 45.

3. Contact of interested amici

Amicus briefs may be filed only by leave of court, granted on motion of the amicus or at the request of the court. App. R. 41. When moving for leave to file an amicus curiae brief, the movant must file an appearance form with the clerk that contains the information specified in App. R. 16(D); 41(A). Unless the court permits the belated filing on motion for good cause, the amicus brief must be filed within the time set for the party the amicus is supporting. App. R. 41(B)–(D). So if a party wants to contact interested amici, it must be done as soon as possible, but in any event no later than when the record is being prepared.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.